State v. Jones , 2023 Ohio 380 ( 2023 )

[Cite as State v. Jones, 2023-Ohio-380.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110742
v. :
KELLY JONES, :
Defendant-Appellant. :
_______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN
PART; VACATED IN PART; REMANDED
RELEASED AND JOURNALIZED: February 9, 2023
_______________________________________
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641989-A
_______________________________________
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen Hatcher and Daniel Cleary,
Assistant Prosecuting Attorneys, for appellee.
Thomas A. Rein,* for appellant.
*Jonathan N. Garver appointed for the limited purpose of
post-decision representation.
ON RECONSIDERATION1
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Kelly Jones (“Jones”) appeals his convictions for
aggravated arson, felonious assault, arson and domestic violence following a jury
trial. Jones contends that the trial court erred by admitting evidence of out-of-court
statements by the alleged victim, who did not testify at trial, in violation of his rights
under the Sixth Amendment’s Confrontation Clause and the rules of evidence. He
also contends that (1) his guilty verdicts are not supported by sufficient evidence and
are against the manifest weight of the evidence, (2) the trial court erred in failing to
merge the aggravated arson and felonious assault offenses for sentencing, (3) the
trial court failed to make the requisite findings to support the imposition of
consecutive sentences under R.C. 2929.14(C)(4), (4) the trial court erred in
sentencing him to an indefinite sentence because the indefinite sentencing
provisions of the Reagan Tokes Law are unconstitutional and (5) the trial court erred
in allowing the state to present additional evidence related to notice of prior
conviction and repeat violent offender specifications after the court had returned its
verdicts on those specifications.
For the reasons that follow, we affirm Jones’ guilty verdicts on all
offenses. However, because we find that, under the facts and circumstances here,
1 The original announcement of decision, State v. Jones, 8th Dist. Cuyahoga No.
110742, 2022-Ohio-1936, released June 9, 2022, is hereby vacated. This opinion, issued
upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C);
see also S.Ct.Prac.R. 7.01.
the aggravated arson and felonious assault offenses of which Jones was convicted
are allied offenses of similar import, we vacate Jones’ sentences on those counts and
remand for a new sentencing hearing on those offenses.
I. Factual Background and Procedural History
On July 19, 2019, a Cuyahoga County Grand Jury indicted Jones on
six counts: one count of aggravated arson in violation of R.C. 2909.02(A)(1), a first-
degree felony (Count 1); one count of attempted murder in violation of R.C.
2903.02(A) and 2923.02, a first-degree felony (Count 2); one count of felonious
assault in violation of R.C. 2903.11(A)(1), a second-degree felony (Count 3); one
count of aggravated arson in violation of R.C. 2909.02(A)(2), a second-degree felony
(Count 4); one count of arson in violation of R.C. 2909.03(A)(1), a fourth-degree
felony (Count 5) and one count of domestic violence in violation of R.C. 2919.25(A),
a first-degree misdemeanor (Count 6). Counts 1-4 also included notice of prior
conviction and repeat violent offender specifications. The charges related to Jones’
alleged assault and burning of then 78-year-old Ernestine Dumas at her home in
Cleveland, Ohio on July 12, 2019. Jones had been living in Dumas’ home at the time
of the incident. Jones pled not guilty to all charges. After several continuances, the
case was set for trial on June 14, 2021.2
2 At or shortly after his arraignment, a concern was raised regarding Jones’
competency to stand trial, and the trial court referred Jones to the court psychiatric clinic
for a competency evaluation. On September 11, 2019, the parties stipulated to the findings
and admissibility of a competency report that opined that Jones was, at that time,
incompetent to stand trial but that there was a substantial probability of his restoration
to competency within the statutory time frame if he were to be provided with a course of
treatment. The trial court, therefore, ordered Jones to undergo inpatient treatment for
On June 14, 2021, the state filed a motion for continuance on the
grounds that one of the state’s witnesses, Jeraldine Campbell (“Campbell”) — “the
first person the victim had contact with following the incident” — had undergone
hip replacement surgery two weeks earlier and “would not have medical clearance
to attend trial in her current condition.” In its motion, the state further asserted that
“the alleged victim is permanently unavailable to testify due to her medical
condition,” but did not provide any details regarding Dumas’ medical condition or
otherwise explain in the motion why she would be “permanently unavailable to
testify.”3
The following day, Jones filed a motion in limine “to exclude and/or
limit the testimony” of the state’s witnesses “regarding statements that may have
been made to them by Ernestine Dumas,” arguing that admission of such evidence
would violate his rights under the Sixth Amendment’s Confrontation Clause and the
rules of evidence.
competency restoration at Northcoast Behavioral Healthcare. In December 2019, a
psychiatrist from Northcoast Behavioral Healthcare issued a report in which she opined
that Jones was competent to stand trial, i.e., that he had the ability to understand the
nature and objectives of the charges and proceedings against him and had the ability to
assist in his defense. In October 2020, at the request of defense counsel, the trial court
referred Jones to the court psychiatric clinic for an evaluation of his sanity “at the time of
the act.” According to the trial court, Jones refused to cooperate with this sanity
evaluation. Given that the last report submitted to the trial court indicated that Jones
was competent to stand trial, the trial court indicated that the trial would “go forward” as
scheduled.
3There is no indication in the record as to whether the trial court ruled on this
motion prior to trial; however, as detailed below, Campbell testified at trial.
Before trial commenced, the trial court allowed the parties to argue
Jones’ motion in limine. Jones reiterated the arguments made in his motion, i.e.,
that his “only accuser” was Dumas, that “the admission of testimonial hearsay
through other State’s witnesses * * * would violate [his] Sixth Amendment rights”
and that the “facts show that [Dumas’] hearsay statements do not meet the
requirements to be considered an exception to the hearsay rule.” With respect to
Dumas’ unavailability to testify, Jones noted that they had “been briefed in
chambers as to the reason that [Dumas] would be unavailable for attendance at trial”
but that defense counsel had not received “any documentation that would
substantiate dementia, Alzheimer’s or the inability of [Dumas] to not be able to
testify relative to the events of July 12th, 2019.” Jones requested that the trial court
“limit the testimony of any witness relative to any statements made to them by Ms.
Dumas since we know that she will not be present to testify in court.”
The state responded that it would be seeking to admit evidence of (1)
Dumas’ statements to her neighbor, Campbell, (2) Dumas’ statements on the 911 call
and (3) her “initial statements to the police officers on scene.”4 The state asserted
that it was not required to establish Dumas’ unavailability in order to introduce
evidence of her prior statements5 and argued that these statements “don’t actually
4 As discussed in greater detail below, the state, over Jones’ objection, ultimately
introduced evidence of additional statements Dumas made to law enforcement regarding
the incident; however, the state did not address the admissibility of those statements in
arguing against Jones’ motion in limine or in its appellate brief.
5 The state denied that it was “sandbagging the defense” and claimed that “[t]he
defense has known for about a year that we didn’t intend to call the victim.”
fall under the [C]onfrontation [C]lause” because (1) the Confrontation Clause
applies to “responses to police interrogations,” not to statements made to someone
like Campbell, and (2) Dumas’ statements to the 911 operator and her “initial
statements to the police officers on scene” were non-testimonial because they were
made “under circumstances objectively indicating that the primary purpose of the
interrogation [was] to enable police assistance to meet an ongoing emergency.” The
state further argued that Dumas’ statements, made while under the effect of a
startling event she personally experienced, qualified as “excited utterances” under
Evid.R. 803(2) and were, therefore, admissible under the rules of evidence.
The trial court denied Jones’ motion in limine, and trial commenced
on June 16, 2021. Jones waived his right to a jury trial on the notice of prior
conviction and repeat violent offender specifications; the remaining issues were
tried to a jury.
A. Trial
At trial, the state presented testimony from eleven witnesses:
Campbell (Dumas’ neighbor); Leticia Rice (the 911 operator who received Dumas’
911 call); paramedic Kim Florczyk (one of the EMS personnel who examined and
treated Dumas at the scene); Dr. Christopher Brandt (one of the physicians who
treated Dumas’ burn injuries); Mark DePhillips (a former Cleveland firefighter and
arson investigator, who was at the scene); Charles Jones and Terencita Jones-Green
(Dumas’ nephew and niece)6 and various police officers. In addition to the
witnesses testimony, the state introduced photographs taken by the arson
investigator at the scene (state exhibit Nos. 4-39), the audio recording of Dumas’ 911
call (state exhibit No. 3), excerpts of footage from the body cameras of Cleveland
police officers James Donnellan and Kenneth Potchatek (state exhibit Nos. 1, 1.2 and
43) and the EMS run report (state exhibit No. 47).7 The parties stipulated to the
“relevancy and admissibility” of over 1800 pages of medical records, including
photographs, detailing Dumas’ injuries, diagnoses and medical care and treatment
related to the incident (state exhibit No. 46). A summary of the relevant evidence
follows.
1. Testimony of Neighbor
Campbell lived “[a]cross the street down a little bit” from Dumas and
was an “acquaintance” of Dumas. The two women had known each other since they
were children and had “grown up together.” Campbell testified that on July 12,
2019, Dumas came to her house, told Campbell she needed to go to the hospital and
6 Charles Jones and Terencita Jones-Green are not related to Kelly Jones.
7 As reflected in the trial transcript, during the witness testimony, the recording of
the 911 call was identified as state exhibit No. 2 and state exhibit No. 3 was excerpts of
footage from Donnellan’s body camera (video only) that was played for the jury during
his direct examination. When the exhibits were admitted into evidence at the conclusion
of the witnesses’ testimony, the recording of the 911 call was marked as state exhibit No.
3 and state exhibit No. 2 (then identified as body camera footage) was withdrawn.
Defense exhibit A, the “entire version” of Donnellan’s body camera footage (audio and
video), was offered by the defense and admitted into evidence. To the extent we reference
the exhibits here, we refer to the exhibits by their designations at the time they were
admitted into evidence.
asked Campbell if she would take her to the hospital. Campbell stated that Dumas
appeared “calm,” looked “well put together” and that she was initially unaware that
Dumas had been burned. Campbell testified that Dumas told her “Kelly had thrown
fire on her” but “didn’t go into any detail.” Campbell indicated that she knew who
“Kelly” was, i.e., a man who had been living in Dumas’ home, and identified “Kelly”
in court as Jones. Campbell stated that she told Dumas she did not drive at night,
“so she would do better if we called 911,” and she then called 911. Campbell indicated
that Dumas stayed at her home until an ambulance arrived and that Campbell went
with Dumas to the hospital. Campbell testified that she knew Dumas had “some
cognitive something” and was in “some stage” of dementia and stated that she
advised police and fire department personnel on the scene of that fact so they knew
“what they were dealing with.”
2. Testimony of the 911 Operator and the 911 Call
Leticia Rice (“Rice”) was working as a 911 operator on the evening of
July 12, 2019, when she received a call from Dumas. The state played an audio
recording of the 911 call for the jury (state exhibit No. 3), which Rice confirmed was
“a fair and accurate depiction” of the call she received from Dumas:
Rice: 911. Did you need police, fire, or ambulance?
Dumas: Police.
Rice: To what address?
Dumas: Oh. I need an ambulance too.
Rice: Oh, you need an ambulance?
Dumas: I need the police and an ambulance. This guy I let stay in my
house is going crazy and throwed gasoline and something on me trying
to burn my mother’s house down. * * * [unintelligible; Rice talks over
her]
Rice: He threw gasoline on you?
Dumas: Yes. Set me on fire.
Rice: Ok. He set you on fire already, ma’am?
Dumas: Yes ma’am, and I’m out now but it’s on face, arms, and chest.
Rice: Ok. What’s your address. What’s your address? Tell me. * * *
You are calling from someone else’s phone?
Dumas: Right.
Rice: Is he still inside of the house?
Dumas: He was when I left.
Rice: Ok. What’s your name?
Dumas: Ernestine Dumas.
Rice: Stay on the line with me.
Dumas: I’m on fire. I’ve got to get to the hospital.
Rice: You said you were not on fire anymore?
Dumas: I said I’ve got to get to the hospital.
Rice: Ok. Ok. What’s the guy’s name that did it?
Dumas: Kelly Jones. I let him stay with me ‘cuz he didn’t have nowhere
to stay but he came in all looped out, high, and [unintelligible] went
crazy on me.
Rice: Did you remember anything like what he was wearing just in case
so we can catch him if he leaves?
Dumas: He had on like a sweatsuit at the bottom.
Rice: What color?
Dumas: I think they’re black.
Rice: Black. Is he black, white, or Hispanic?
Dumas: Black.
Rice then transferred Dumas to the EMS dispatcher, where the following exchange
occurred:8
EMS Dispatcher: Cleveland EMS. What’s the address of the
emergency? * * *
Dumas: I’ve been set on fire and I’m burning up. * * * I’m at my
neighbor’s right now ‘cuz he was still in the house when I left out of
there. Ma’am I’m on fire. I’ve got to get to a hospital.
***
EMS Dispatcher: You said you’re on fire right now?
Dumas: I’m burning up on fire like burning fire.
EMS Dispatcher: What do you mean by you’re burning up on fire?
Dumas: He set me on fire ma’am.
EMS Dispatcher: Are you still on fire?
Dumas: No. I’m out. I put my own self out.
EMS Dispatcher: Ok. How old are you?
Dumas: 78
8 Rice testified that she “stayed on the line” while Dumas was talking to the EMS
dispatcher.
EMS Dispatcher: When did this happen?
Dumas: About an hour ago.
EMS Dispatcher: Is anything still burning or smoldering?
Dumas: No.
EMS Dispatcher: Is everybody safe and out of danger?
Dumas: There was no one there but he and I.
EMS Dispatcher: Ok, but is everybody safe and out of danger?
Dumas: [unintelligible] Yes. Ma’am I got to go. Bye.
EMS Dispatcher: I need you to stay on the line with me.
Dumas: [unintelligible] I’m turning red.
EMS Dispatcher: We’re going to send an ambulance to you. * * *
Campbell then got on the line, responded to further questions from
the dispatcher regarding Dumas’ injuries and received instructions from the
dispatcher regarding care to provide to Dumas until emergency medical personnel
arrived.
Rice testified that she did not know Dumas or Jones, knew nothing
about them and did not know whether Dumas had accurately described what had
occurred.
3. Testimony of Police, Arson Investigator and Medical
Providers
Cleveland police detective James Donnellan (“Donnellan”) was
working as a Cleveland patrol officer on July 12, 2019 when he responded to a call
at Dumas’ residence sometime after 10:00 p.m. Dumas was, at that time, across the
street at Campbell’s house. Donnellan testified that he and his partner, patrol officer
Hicks, were the first officers on the scene. He stated that when they arrived on scene,
he observed that the outside pane of glass (but not the inside pane of glass) on one
of the home’s front windows had been broken and that glass was scattered on the
front porch, i.e., as if someone had been trying to break the window from the outside.
Donnellan did not observe any object that might have been used to break the
window and could not state when the window had been broken. While waiting for
“back up” to arrive so that they could “clear the house,” Donnellan went to the
Campbell’s home to speak with Dumas.
Donnellan testified that when he arrived at Campbell’s house, Dumas
was “being treated by Fire and EMS.” He described Dumas as “an older lady, very
thin, very frail looking,” who appeared “very out of it” and “scared.” He indicated
that she “didn’t look to be in very good shape” and that he had observed burns on
her arms and neck.
Donnellan stated that he spoke with Dumas briefly as she was being
treated by the paramedics. His conversation with Dumas was recorded on his body
camera. During Donnellan’s testimony, the state played excerpts of the body camera
footage (both audio and video recordings) for the jury (state exhibit No. 1), which
included the following exchange:
Donnellan: Hi miss. Do you know this guy?
Campbell: She knows him.
Donnellan: Are you pretty sure that he’s in the house?
Dumas: I don’t know whether he’s still in there now * * *
[unintelligible; officer talks over her]
Donnellan: Did he dump the gas on you in the house?
Dumas: Yes. * * * [unintelligible; officer talks over her]
Donnellan: Because there’s a big hole in your window.
Dumas: He bust the window out with a stick.
Donnellan: Did he come in the front door?
Dumas: He had a key to my house * * * [unintelligible]
Donnellan: Who is this guy?
Dumas: His name is Kelly Jones.
Because the volume was low and the audio portion of the body camera
footage was difficult to hear, Donnellan also testified regarding what Dumas had
told him when he spoke with her at her neighbor’s home:
Q. Do you recall what she had said to you?
A. Yes. She told us the name of the suspect.
Q. And what suspect name did she give you?
A. Kelly Jones.
Q. You had asked her about a hole in the window. Do you recall what
if anything she said about that?
A. I can’t remember. It was kind of hard for me to hear. I can’t
remember exactly what she said.
***
Q. What are you asking her about?
A. I’m asking her if the suspect who did this to her is — would still — if
she believes that he would still be in the house and then I also
mentioned — I asked her what happened to her front window, why it
was broken out, and she seemed very confused about that.
Q. Do you know if the suspect was still in the house?
A. At this time I did not know. * * * I asked who the — I asked again
who did this to her, trying to get information on the suspect, and she
said it was Kelly Jones.
Donnellan stated that he spoke with Dumas only “briefly” because he
was “more concerned” “about if the suspect was still in the house” and “getting [her]
to the hospital for treatment” than “taking her through a long interview process at
that time.” He stated that he did not have any further discussions with Dumas
because it was later determined that he and his partner would only be “assisting on
the assignment” and “when we do those assisting roles like that, I try not to get too
much of an involved statement from a witness or a victim so that they won’t have to
repeat it again down the line to the car who is actually handling the report.”
After speaking with Dumas, Donnellan returned to Dumas’ residence.
By this time, other officers had arrived at the scene, including Cleveland patrol
officer Kenneth Potchatek (“Potchatek”) and his partner, Cleveland patrol officer
Jacob Strehle (“Strehle”), who was then in field training. Donnellan’s and
Potchatek’s body cameras recorded their actions, observations and statements at the
scene, excerpts of which were played for the jury as the officers testified. (State
exhibit No. 43 and defense exhibit A.)9
Potchatek testified that he responded to a call that was broadcast as
“a female that was set on fire.” When he arrived, two other zone cars, fire and EMS
were already on scene. He stated that he knew Dumas, that he had been at Dumas’
residence “[t]wo or three” times prior to July 12, 2019, including responding to a
report by Dumas that there were people living in her (uninhabitable) attic, and that
he knew Dumas had dementia.
Potchatek testified that when he arrived on scene, he spoke with
Donnellan and informed Donnellan that he was a certified intervention team (“CIT”)
officer and that Dumas had been previously “certified CIT,” i.e., referred to CIT, due
to her dementia.
Donnellan, Potchatek and other officers entered Dumas’ home10 and
proceeded to “clear” it. Donnellan testified that when he entered the home, he
noticed a “distinct odor” that smelled like a combination of “some sort of accelerant”
— not gasoline but a “pungent” “chemical smell” — burning paper and burning
9 While the state introduced only excerpts of Donnellan’s body camera footage
during Donnellan’s direct examination (with the audio muted once Donnellan returned
to “clear” Dumas’ residence), Jones introduced a “full-length” version of Donnellan’s body
camera footage (including the audio recording) during his cross-examination of
Donnellan (defense exhibit A).
10 Strehle did not enter the home. He testified that he was one of the officers
securing the perimeter in case the suspect was in the house and attempted to flee. He
stated that he secured the perimeter for “[a]pproximately three minutes” before he and
Potchatek left for the hospital to interview Dumas.
plastic. Officers went “room by room” and did a “cursory search” to see if there were
any potential suspects inside. No one was inside the home.
Donnellan and Potchatek described for the jury what they observed
as they went through the home. Donnellan noted that the front window with the
broken glass was a bedroom window. He stated that, in that room, debris was on
the ground, “like somebody had scattered or torn through that part of the room,”
along with approximately three “half full or empty” bottles of rubbing alcohol, burnt
paper and a burnt lampshade. He indicated that the fire was a “small fire” — a
lampshade and some papers in a “confined area” — and was “not even a big part of
the room it was in.” Potchatek similarly testified that the fire was a “small fire,”
“isolated to a small area in one of the bedrooms of the house,” and that “it took a
little bit of time” to find where something had been burned. Donnellan stated the
officers never determined “whose bedroom was whose,” but that Jones’ wallet was
later found in the bedroom where the fire had occurred.
Donnellan testified that the bottles of rubbing alcohol were “dented
in,” “[k]ind of smashed,” “like you would be squeezing it.” He indicated that another
“squeezed” bottle of rubbing alcohol was found outside on the front porch near the
broken glass.
Based on what is observed on the body camera footage, the officers
were in Dumas’ home for less than two minutes.
Potchatek testified that, considering what he had seen in the
residence, i.e., that only the lampshade had been burned, and his prior interactions
with Dumas, he initially concluded that the fire “appeared accidental,” i.e., that “it
may not have happened the way * * * it was told initially.” He expressed this opinion
to Donnellan and the other officers on the scene.
Donnellan testified that once the home was cleared, he called in
representatives of the Cleveland Fire Department to determine whether it was “okay
to leave” the home in its current condition or whether they needed to “dump some
sort of extinguisher on it.” He stated that there were no flames or smoke in the home
and that he was “just being safe.” The firefighters entered the home, looked at the
remains of the fire and determined that nothing needed to be done.
While Donnellan interacted with the fire department personnel,
Potchatek attempted to speak with Dumas. Dumas was, at that time, in the back of
an ambulance receiving medical treatment, getting ready to be transported to the
hospital. Potchatek testified that his purpose in speaking with Dumas was “[t]o get
her side of the story, * * * to have her tell us what happened.” The state introduced
body camera footage (state exhibit No. 43) that captured the following exchange:
Q. Hello honey. How are you today?
A. [unintelligible] get to a hospital.
Q. What happened?
A. He tried to burn me.
Q. Who did?
A. The guy that I let live with me.
Potchatek confirmed that Dumas had then told him that “[t]he guy
who lived there with me” had burned her. The interview was, at that point,
interrupted; EMS personnel informed Potchatek that they were leaving the scene to
take Dumas to the hospital.
Potchatek returned to the scene and spoke with Donnellan.
Potchatek again expressed his view that the fire was accidental and told Donnellan
more about his prior interactions with Dumas. Potchatek said that Dumas was
“crazy,” had “serious dementia” and should not be living alone. Donnellan testified
that he had had no prior dealings with Dumas but that “in the short amount of time
[he] had with her, [he] didn’t believe that she was displaying any of those mental
issues” when he spoke with her. The officers decided that because Dumas’ residence
was in Potchatek’s zone and Potchatek had had prior dealings with Dumas,
Potchatek and Strehle would be the “primary” on the case, i.e., they would take over
the investigation and write the report.
Potchatek and Strehle went to the hospital to interview Dumas while
Donnellan and other officers “secured the scene.” The officers at the scene waited
for a supervisor to arrive to decide whether the home should be treated as a crime
scene and whether an arson investigation was warranted. At some point later, the
supervisor, Sergeant Mark Bickerstaff (“Bickerstaff”), arrived on scene.11
11 Potchatek testified that Sergeant Bickerstaff was not at the scene. However, the
arson investigator testified that he consulted with Sergeant Bickerstaff at the scene.
Strehle testified that he believed Sergeant Bickerstaff arrived on scene after he and
Potchatek had left the scene.
Mark DePhillips (“DePhillips”) was an arson investigator for the
Cleveland Fire Department at the time of the incident. He testified that when he
arrived on the scene, he spoke with the responding police officers to try and figure
out what had happened, then went to inspect the residence. He stated that as he
walked toward the residence, he saw “broken windows” and a bottle of rubbing
alcohol that had been “obviously squeezed and drained.” He testified that when he
entered the residence, he saw little to no smoke or soot damage and that there was
“no real heavy fire damage,” just “some charring * * * with magazine, newspaper
type things” and a lampshade that had melted. He said there was no odor of smoke
and that, although there was a “faint odor” of rubbing alcohol, it dissipated fairly
quicky with the doors open.
With respect to accelerants, DePhillips testified that, when inspecting
the residence, he observed three or four bottles of “highly flammable” rubbing
alcohol, “squeezed or pressed like you would need to do to actually force it out of the
bottles.” He stated that, based on what he saw, he believed the fire was caused by
the rubbing alcohol and an intentional, open flame, but that he did not know who
may have squeezed the bottles, who may have ignited the rubbing alcohol or what
the ignition source was. He stated that he believed the ignition source was an
“intentional” open flame, such as matches, a lighter or a cigarette, because he did
not see any signs of “accidental sources,” such as lightning or an electrical fire.
DePhillips testified that, based on his inspection, he did not see
anything at the scene to indicate an “intent to light the structure on fire,” but that,
at that time, he did not have the “full story,” i.e., he did not know that “the burning
was on the victim herself.” DePhillips testified that after his inspection, he spoke
with Bickerstaff and that Bickerstaff told him the Cleveland Police Department
would handle the matter. He indicated that, based on what he saw with regard to
the structure, he told Bickerstaff “something to the effect” that he “couldn’t stretch
this into an [aggravated] arson if [he] wanted to.” However, DePhillips was
unaware, at that time, that Dumas had been badly burned. He stated that if he had
known that fact, the matter “would have been pursued as an aggravated arson.”
At the hospital, Potchatek and Strehle interviewed Dumas “at great
length” for “[m]aybe an hour” as she was “being treated” and “learn[ed] more
details” about what occurred. Strehle testified that Dumas had been treated for pain
and was in the “emergency bay” when the officers interviewed her. Strehle stated
that Dumas was “very much in pain” but “lucid and calm.” Potchatek offered similar
testimony regarding Dumas’ demeanor. Potchatek explained that, due to HIPPA
restrictions, the officers were unable to record their interview with Dumas at the
hospital.
Potchatek testified that he and Strehle were using the hospital
interview of Dumas as “investigative means.” He stated that, during the interview,
Dumas identified Jones as the suspect, provided a description of Jones, described
how she was injured, including that “a clear liquid” was the “accelerant or
mechanism that caused [her] burns,” and told officers that her vehicle had been
damaged. Strehle testified that Dumas told the officers that “she had been burned
by her live-in tenant Kelly Jones,” that while Jones was “in the midst of destroying
her property,” i.e., after he set her lampshade on fire and she tried to stop him, Jones
“attacked her” and “set her on fire” and that “after he set her on fire[,] he went to set
her car on fire.”
Strehle stated that no one had advised him, during or prior to his
interview of Dumas, that she had a history of dementia or had been previously
referred to CIT. Although acknowledging his prior concerns regarding Dumas’
mental condition, Potchatek stated that he did not believe Dumas was “manifesting”
any of her “psych issues” during the interview because “[e]very detail she gave us
played out.”
Strehle “broadcast” the information they had obtained from Dumas
to the officers who remained at the scene and requested that they look at Dumas’ car
for any burn damage. Donnellan testified that he did not observe any damage to
Dumas’ vehicle but found “[l]ike some sort of candle or a ball of some sort of wax
that looked like it could have been used to light something” on the hood of the car
near the windshield wiper. Donnellan stated that the arson investigator was still at
the scene, so Donnellan asked him to verify what he was seeing, and then informed
Potchatek what he had found.
Donnellan testified that while he and other officers were standing on
Dumas’ porch, “holding down the scene,” a man (later identified as Jones) began
walking towards the house. Donnellan testified that the man’s clothing matched the
description of the clothing officers had been given for the suspect. Donnellan
identified Jones in court as the man who appeared at the scene.
Donnellan testified that he approached the man and asked him to
identify himself but that the man refused to do so and, instead, kept asking, “What’s
going on? What’s going on?” Donnellan stated that he detained the suspect, read
him Miranda warnings and, based on identification contained in a wallet found
inside the house, identified the man as Jones. Donnellan indicated that, based on
his brief conversation with Jones, Jones appeared to be intoxicated. Donnellan
testified that they arrested Jones “based on the victim’s statements and the evidence
on scene” “[b]ecause of the information we had on the suspect and the fact that the
victim gave us his name and we were able to positively identify him when he came
back on scene through his ID and because of the clothes he was wearing.”12
After arresting Jones, Donnellan contacted Potchatek, who was still
at the hospital interviewing Dumas, to advise him of the developments and
determine what Potchatek wanted him to do with Jones. Donnellan testified that
after Potchatek confirmed that Jones’ clothing matched the description of the
suspect’s clothing given by Dumas,13 Donnellan put Jones in the back of his patrol
car and took him to the county jail.
12 Potchatek testified that the supervisor, Bickerstaff, ultimately made the decision
to arrest Jones. To his knowledge, Bickerstaff had no contact with Dumas prior to making
that decision.
13
Strehle testified that the officers did not get a description of the suspect from
Dumas, but rather, “from the witness,” presumably Campbell, since she accompanied
Dumas to the hospital.
The state played excerpts of Donnellan’s body camera footage for the
jury that captured Donnellan’s conversation with Jones while transporting Jones to
the jail (state exhibit No. 1.2).
Donnellan testified that while he was transporting Jones to the jail,
Jones began to make “counter-accusations against the victim saying that the victim
attacked him.” Donnellan stated that Jones was “a bigger guy, husky,” who weighed
“probably 220, 230 pounds, give or take.” He estimated that Dumas then weighed
90 0r 100 pounds. Donnellan stated that Jones did not show any signs of attack or
injury but that he advised Jones that his statement “would go in the report.”
Potchatek met them at the jail, took custody of Jones and “basically took over from
there.” Potchatek testified that after he took custody of Jones, Jones told him that
Dumas had assaulted Jones but that he, likewise, did not see any visible injuries on
Jones.
Donnellan stated that after clearing the residence, he questioned
whether Dumas “did this herself,” “thinking that it could have been a possibility.”
However, he testified at trial that he believed Jones intentionally caused Dumas’
injuries and that he did not consider “any other cause for the fire or [Dumas’] injury”
because, based on “the evidence that we found on scene,” i.e., the burnt paper and
the rubbing alcohol, “it didn’t seem accidental that she could have done it herself.”
Donnellan indicated, however, that when the officers entered Dumas’ home they
were “just looking for a person” and “the source of a fire,” i.e., they were “not looking
for any evidence or anything,” because they did not have a search warrant.
Donnellan acknowledged that Dumas’ description of the incident did
not match what he had observed at the scene in several material respects. Donnellan
testified that although Dumas told police that Jones had doused her with gasoline,
had attempted to set her house on fire and had damaged her vehicle, there was no
gasoline in the home, the house had not been set on fire and Dumas’ vehicle had not
been damaged. Neither Donnellan nor Potchatek could identify the ignition source
for the fire. Donnellan stated that he did not “survey the house” for a lighter,
cigarette butts or anything else that could have started the fire in the bedroom.
Potchatek stated that the officers did not find any matches or any other ignition
source that might have started the fire in the home. Donnellan and Potchatek
indicated that they did not know whether Dumas smoked.
Strehle was charged with writing the police report regarding the
incident. He stated that, in preparing the report, he spoke with Dumas and the other
officers on scene but that he did not speak with any fire department personnel or the
arson investigator. Strehle indicated that, while at the scene, he and the other
officers had been discussing the “possibility” that Dumas may have accidentally “set
herself on fire” and that, in considering that possibility, they “took into account the
physical evidence,” i.e., the rubbing alcohol and the fire to the lampshade and “the
burns on the victim.” Strehle stated that after interviewing Dumas, however, he was
no longer concerned that Dumas may have set herself on fire because “[s]he was
very adamant of the name and the way he set her on fire.” Potchatek testified that
after he spoke with Dumas at the hospital — and “got the story” — and Jones
appeared at the scene, he likewise decided the incident was not an accident.
After the report was submitted, the case was referred to the detective
bureau, and Donnellan, Potchatek and Strehle had no further role in investigating
the case.
Kim Florczyk (“Florczyk”), a paramedic for the city of Cleveland, was
one of the responding EMS personnel who treated Dumas at the scene. During her
testimony, Florczyk read from an EMS run report, which states: “PT [Patient]
reportedly ha[d] a flammable liquid thrown on her and then was lit on fire. Per PT,
PT put herself out by smacking self.” Florczyk stated that Dumas had second-degree
burns to her chest, neck, lips and wrists and a third-degree burn to her right earlobe.
She indicated that Dumas rated her pain as a 10-out-of-10 even after receiving 50
micrograms of fentanyl, so they administered another 50 micrograms of fentanyl to
her. Due to her injuries and distress level, Dumas did not sign the “billing signature”
on the report; a member of the nursing staff signed for her.
Dr. Christopher Brandt (“Dr. Brandt”), a burn surgeon at
MetroHealth Medical Center, was one of Dumas’ treating physicians. He began
treating Dumas for her injuries several days after her admission to the hospital. Dr.
Brandt described Dumas’ injuries and testified that Dumas had sustained “life-
threatening” second-degree and third-degree burns to 16.5 percent of her body,
including her chest, shoulders and upper arms, neck, face, hands and forearms. He
stated that Dumas underwent multiple surgeries during her six-week
hospitalization.
Cleveland police detective David Sims (“Sims”) was assigned to follow
up on the case after Potchatek and Strehle turned in their report.14 He went to the
hospital to interview Dumas. Jones, by that time, had already been arrested. Sims
testified that he “went to get all the facts, as much as I could, about what happened
that night, or the day, and find out if she knew who had committed this crime against
her.”
With regard to his first interview of Dumas, Sims testified:
Q. * * * We’re not going to get into the details of what she said, but did
she identify a suspect?
A. Yes.
Q. And who was the suspect that she identified?
A. Kelly.
Q. Did you get a last name or no?
A. That’s how she had — that’s how she identified him, as Kelly. But
yes, I learned — I later found out the suspect that was arrested was the
defendant.
He stated that Dumas was “in very bad pain” the first time he
questioned her but that she “was well aware of what happened, she was able to speak
14It is unclear whether Detective Sims reviewed the police report in this case. On
direct examination, he testified, “After reviewing the report, I proceeded to the hospital
to interview Ms. Dumas”; however, on cross-examination, he denied having “review[ed]
the report prepared and filed by Officer Strehle.” He testified, however, that he had had
a conversation with Potchatek about the case.
with me, tell me what happened, who done it.” He indicated that Dumas had
recalled him from a burglary case he had handled two years earlier, in which several
juveniles broke into Dumas’ home and stole various items.
Sims testified that he visited Dumas approximately another three
times at the hospital and then on three more occasions at a nursing facility. With
regard to his subsequent interviews of Dumas, Sims testified:
Q. And each time you visited her, was she talking to you about what
had happened or were you talking about other things?
A. Every time I visited, we talked about that particular day, what
happened.
Q. And again, we’re not really going to get into exactly what she said,
but did it remain consistent?
A. Yes, it did.
Q. And did she identify the suspect each time?
A. Yeah. She always identified him as Kelly.
Sims stated that his purpose in interviewing Dumas multiple times
was his “continuing investigation,” i.e., “I wanted to see what her condition was to
make sure, you know, her statement was the same, if she knew who I was and, you
know, who had done this, committed this crime against her.” He indicated that he
did not have any concern regarding her mental condition but was concerned
regarding her physical condition “because of the status she was in” and that he
believed her physical condition had been “deteriorating.”
Sims testified that, other than calls to the nursing staff to check up on
Dumas, his interviews of Dumas concluded his investigation in the case. He did not
interview Jones15 or anyone else who may have witnessed the incident or who may
have known Dumas or Jones when investigating the incident. Other than the brief
walk-through of Dumas’ residence on the evening of the incident, there is nothing
in the record to indicate that police inspected the residence or recovered or tested
any physical evidence from the residence. Sims testified:
A. * * * After I got all the facts from her, as much as I could, I then
conferred with the prosecutor and presented the package for them to
charge and then I had other stuff to do for the grand jury packet.
Q. Once you finished that charging, does that conclude your
involvement?
A. Yes.[16]
***
A. * * * I had interviewed the victim and she was well aware of what
happened, was able to speak clearly, told me what happened, and I took
what I had, the information I had, to the prosecutor and they deemed
it was enough to go forward with the charges.
Sims testified that he was “unaware of any possible mental-health
issues” with Dumas when speaking with her and stated that although he had spoken
15 Sims testified that he had once attempted to speak with Jones, i.e., that he had
once called down to the jail to make an appointment to speak with Jones, but “was told
that he was refusing an interview.” Sims stated that he was unaware that Jones had made
a statement to police and did not consider it in his investigation.
16Based on Sims’ report, which was not admitted into evidence, it appeared that
Sims had been assigned the case on July 13, 2019 and that Jones was charged on July 14,
2019. Sims testified that he spoke with Dumas’ family members “after [he] charged Mr.
Jones.”
with Potchatek regarding the case, he was unaware that Dumas had been previously
referred to CIT because of her mental condition.
4. Other Evidence
Charles Jones (“Charles”), Dumas’ nephew, testified that, prior to the
incident, he would visit Dumas once “every couple months or have a phone call” with
her but could not recall when he last saw her prior to the incident. He indicated that,
in the summer of 2018, concerns arose regarding Dumas’ “forgetfulness” and he,
therefore, “took over” bill payment for Dumas, paying her bills out of her checking
account to “make sure she didn’t miss any.” He stated that, at that time, Dumas still
had a car but that he “wasn’t sure if she was safe on the road driving” because he
“wasn’t sure if she was remembering everything with the driving.” He indicated,
however, that he did not have any concern, prior to the incident, for Dumas’ “well-
being” or believe that she “shouldn’t be living alone.” He stated that Dumas was
then “pretty independent” and that she liked to go out with her friends. Charles
indicated that he did not “know of” Jones and was not aware, prior to the incident,
that he or anyone else was living with Dumas.
Charles testified that he was appointed Dumas’ legal guardian for
medical decisions in March 2020 and that he was in the process of seeking total legal
guardianship of her at the time of trial. He stated that, following the incident,
Dumas had spent six months in three different hospitals, had undergone multiple
skin graft surgeries and had stayed in three other rehabilitation centers before being
transferred to the rehabilitation center where she then resided.
Charles testified that Dumas was diagnosed with dementia after the
incident but that, to his knowledge, she had not been diagnosed with dementia prior
to the incident. He stated that he was unaware that Dumas had made a prior report
to police that someone was living in her attic. According to Charles, Dumas’ mental
condition worsened following the incident, i.e., “at a point, she was very forgetful.”
Although Charles acknowledged that “you never improve” once you have dementia,
he stated that Dumas was “doing better now,” that she always recognizes him and
that he could have a “good conversation” with her.
Terencita Jones-Green (“Jones-Green”), Dumas’ niece and a retired
Cleveland police officer, testified that, for the past year, Dumas had been residing at
a nursing home in Richmond Heights. She stated that, prior to the incident, Dumas
was independent and that she had had no concerns regarding Dumas’ mental
condition. According to Jones-Green, although Dumas, at that time, showed some
signs of forgetfulness, i.e., misplacing her keys and “[t]hat type of issue,” she had
nothing more than “oldzeimers” — “a nice way to say that our mind is not
functioning as well as it used to.” Jones-Green stated that, prior to the incident,
Dumas had a car and that although she “didn’t drive a lot,” she drove “wherever she
needed to,” e.g., to the bank, to the grocery store or to her cousin’s house. Jones-
Green indicated that she had no concerns, at that time, about Dumas driving.
Jones-Green denied that concerns regarding Dumas’ forgetfulness
led Charles to take over Dumas’ bill paying in 2018. Jones-Green stated that she
had decided to set up automatic bill payment for Dumas (as she had for all her senior
family members), so that Dumas would not “have to worry about anything but
enjoying [her] life.”
Jones-Green testified that, prior to the incident, she had begun
packing Dumas’ belongings because Dumas’ residence had bed bugs and Jones-
Green had arranged to have the house exterminated. She stated that she knew Jones
as a “nice” “neighborhood person” who “help[ed] out the seniors” and who would,
at times, “go to the grocery store for [Dumas] and do certain things for her.” She
indicated that Jones had also once used Dumas’ car to drive her to the hospital when
Dumas needed medical care. Jones-Green testified that she did not know Jones was
staying with Dumas until after the incident and did not see any of his things when
packing Dumas’ belongings in preparation for the exterminator. She stated that the
front bedroom was not Dumas’ bedroom and that she did not go into that room
when packing up the house other than to turn up the mattress per the exterminator’s
instructions. Jones-Green indicated that Dumas smoked marijuana but not
cigarettes.
Jones-Green testified that, as a result of the incident, Dumas can no
longer use her hands, that several of her fingers “don’t move,” that a lip and part of
her neck “won’t move” and that she has a feeding tube in her stomach. She stated
that when visiting Dumas, Dumas has never had trouble recognizing her and has
always known who she is. Jones-Green indicated that she had never been made
aware that Dumas has dementia but acknowledged that she had not been “actively
involved” in her aunt’s medical care for several years.
The state introduced medical records, detailing Dumas’ injuries,
diagnoses and medical care and treatment related to the incident. The medical
records include an “emergency department — visit note” authored by Julia Coppi,
M.D., dated July 12, 2019, at 11:47 p.m., which states, in relevant part, as follows:
The history is provided by the Patient and EMS. Ernestine Dumas is a
78-year-old female presenting to the ED as a CAT 2 trauma activation.
Mechanism was * * * physical assault with * * * thermal burns. Brought
in by CEMS. This occurred approximately 1 hour * * * , the patient was
in a fight with a person who was a friend of a friend living in her house.
The argument escalated and she was doused with a flammable liquid
?gasoline [sic] or rubbing alcohol and lit on fire with a piece of paper
thrown on her while on fire. She states he attacked her and punched
her in the face, but currently denies facial pain * * * Patient currently
complaining of pain over chest, arms, anywhere with burns. * * *
At the conclusion of the state’s case, Jones moved for a mistrial based
on his “ongoing objections to the hearsay” statements that had been admitted into
evidence during the trial, asserting that “there is no instruction that is able to cure
the damage caused by the admissibility of that hearsay evidence.” He also moved
for acquittal pursuant to Crim.R. 29. The trial court denied both motions.
Jones did not testify at trial and did not present any witnesses on his
behalf.
B. Guilty Verdicts
The jury found Jones guilty of aggravated arson in violation of R.C.
2909.02(A)(1) (Count 1), felonious assault (Count 3), arson (Count 5) and domestic
violence (Count 6). The jury found Jones not guilty of attempted murder (Count 2)
and aggravated arson in violation of R.C. 2909.02(A)(2) (Count 4). After the jury
was discharged, the trial court found Jones guilty of the notice of prior conviction
and repeat violent offender specifications on Counts 1 and 3. The trial court referred
Jones for a presentence investigation report and scheduled a sentencing hearing.
On July 15, 2021, the date scheduled for the sentencing hearing, the
trial court withdrew its prior verdicts on the notice of prior conviction and repeat
violent offender specifications and, over Jones’ objection, allowed the state to
present witness testimony and other evidence related to those specifications.
After the presentation of this evidence and the parties’ closing
arguments regarding the notice of prior conviction and repeat violent offender
specifications, the trial court once again found Jones guilty of the notice of prior
conviction and repeat violent offender specifications, and the case proceeded to
sentencing.
C. Sentencing
At the sentencing hearing, the trial court rejected Jones’ argument
that the offenses for which he had been found guilty were allied offenses of similar
import that should be merged for sentencing. After hearing from Dumas’ sister and
niece, the state and defense counsel, the trial court sentenced Jones at the
sentencing hearing to an aggregate sentence of 31 years to 36.5 years as follows: on
Count 1 (aggravated arson) — 21 to 26.5 years (11 years to 16.5 years for the
underlying offense plus ten years for the repeat violent offender specification); on
Count 3 (felonious assault) — eight years; on Count 5 (arson) — 18 months and on
Count 6 (domestic violence) — six months. The trial court ordered that the
sentences on all counts be served consecutively. (Tr. at 773-778.) The trial court
also sentenced Jones to five years’ mandatory postrelease control, advised him of
his registration requirements for the arson registry and stated that “[t]he defendant
is credited for jail time served.”
In its July 22, 2021 sentencing journal entry, the trial court imposed
a sentence on Count 6 of “time served” and sentenced Jones to an aggregate
sentence of 30.5 to 36.5 years.17
With respect to its decision to impose consecutive sentences, the trial
court stated, at the sentencing hearing:
So what do you do with a person like this who has been to prison
five times, who has been involved in a shooting, who has been involved
in all the crimes I’ve mentioned, and now he’s out in the community
lighting people on fire? What you do is you put them in prison for as
long as you possibly can.
That’s my job. My job is to protect the peace and dignity of the
State of Ohio and I intend to do that by imposing a maximum
consecutive period of incarceration in this case for the foregoing
reasons. * * * All right. Pursuant to 2929.14(E)(4) [sic], the harm here
is so great and it’s so unusual that no single term adequately reflects
the seriousness of this defendant’s conduct, and he has a criminal
history that shows that consecutive terms are necessary to protect him
[sic] from the public.
This is the worst form of the possible offense. The offender
possesses a great likelihood of committing future crimes given his track
record.
Additionally, the victim in this case was a senior citizen. She was
elderly. He preyed upon her. And it’s just so pathetic, the one person
— the one person that was giving you a lifeline, permitting you to stay
17 Neither party raises the difference in the sentence imposed at the sentencing
hearing and that imposed in the sentencing journal entry as error on appeal. Accordingly,
we do not further consider the issue here.
at her house, trying to help you out, and what do you do? You did what
the jury has convicted you of and you should be ashamed of yourself.
* * * You have a 29-cycle history of criminal convictions. * * * So I think
those are the reasons set forth for a consecutive period of incarceration.
* * * I want to impose a * * * consecutive sentence because I want to
again indicate that this is clearly the worst form of the offense and the
person that he committed this act of domestic violence on was an
elderly individual.
All those sentences are consecutive for the reasons mentioned.
The trial court did not set forth its findings in support of the
imposition of consecutive sentences in its sentencing journal entry. In its July 22,
2021 sentencing journal entry, the trial court simply stated, “Court placed on the
record 2929.14 E4 [sic] in regards to consecutive sentence.”
Jones appealed, raising the following seven assignments of error for
review:
Assignment of Error I: The trial court erred in the admission of hearsay
evidence and testimonial statements, in violation of Appellant’s right
to confront his accusers, as protected by the Sixth Amendment of the
United States Constitution.
Assignment of Error II: The trial court erred by failing to grant a
judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and
thereafter entering a judgment of conviction of those offenses as those
charges were not supported by sufficient evidence, in violation of
defendant’s right to due process, as guaranteed by the Fourteenth
Amendment to the United States Constitution.
Assignment of Error III: Appellant’s convictions are against the
manifest weight of the evidence.
Assignment of Error IV: The trial court erred by ordering convictions
and a separate sentence for separate counts because the trial court
failed to make a proper determination as to whether those offenses are
allied offenses pursuant to R.C. 2941.25 and they are part of the same
transaction under R.C. 2929.14.
Assignment of Error V: The trial court erred by ordering Appellant to
serve a consecutive sentence without making the appropriate findings
required by R.C. 2929.14 and HB 86.
Assignment of Error VI: The trial court erred by imposing an indefinite
prison sentence upon Appellant which is unconstitutional.
Assignment of Error VII: The trial court erred by allowing the State to
re-open its case to present additional evidence after all verdicts had
already been rendered.
II. Law and Analysis
A. Admissibility of Dumas’ Out-of-Court Statements
In his first assignment of error, Jones argues that the trial court erred
in admitting evidence of various out-of-court statements Dumas made following the
incident. Specifically, Jones challenges the trial court’s admission of evidence of six
sets of statements in which Dumas described the incident and/or identified Jones
as the person responsible for her injuries: (1) Dumas’ statements to her neighbor,
Campbell, at Campbell’s home, (2) Dumas’ statements to the 911 operator and EMS
dispatcher during her 911 call, (3) Dumas’ statements to Donnellan while at
Campbell’s home, (4) Dumas’ statements to Potchatek while in the back of the
ambulance awaiting transport to the hospital, (5) Dumas’ statements to Potchatek
and Strehle while she was at the hospital on the evening of the incident and (6)
Dumas’ statements to Sims on approximately seven different occasions while
Dumas was at the hospital or at a nursing facility.
Jones contends that each of those statements, which describe “what
had occurred in the past,” were (1) “offered to prove the truth of the matter asserted,”
(2) “do not fall within any recognized exceptions” to the hearsay rules and (3) were
testimonial and should have, therefore, been “excluded from evidence pursuant to
the Confrontation Clause.” Jones contends that the trial court’s error “unfairly
violated his absolute right to a fair trial” and, as a result, his convictions “must be
overturned.”
The state responds that (1) the admission of Dumas’ statements to
Campbell “do not implicate the Confrontation Clause” because “they are not ‘prior
testimony at a preliminary hearing, before a grand jury, or at a formal trial, and
responses to police interrogations,’” quoting Cleveland v. Merritt, 2016-Ohio-4693,
69 N.E.3d 102, ¶ 8 (8th Dist.), (2) Dumas’ statements to the 911 operator/EMS
dispatcher were “not testimonial within the meaning of the Confrontation Clause”
because the primary purpose of Dumas’ 911 call was to “enable police assistance”
and “to secure emergency medical assistance for her serious burns” and (3) Dumas’
statements to Donnellan (while at Campbell’s house) were “not testimonial” because
the purpose of Donnellan’s “brief conversation” with Dumas was “merely to elicit
some basic information,” including “who the suspect was and his whereabouts so
that an effective police response could be mounted.” The state further argues that
“all three” sets of out-of-court statements were properly admitted under the rules of
evidence as “excited utterances.” The state does not address the admissibility of
Dumas’ statements to Potchatek, Strehle or Sims — all of which were also admitted,
over Jones’ objection, by the trial court — in its appellate brief.
We begin with a review of the law that applies in determining the
admissibility of Dumas’ out-of-court statements. We then address the admissibility
of each of these sets of statements in turn. See United States v. Arnold, 486 F.3d
177, 189 (6th Cir.2007) (“Each victim statement * * * must be assessed on its own
terms and in its own context to determine on which side of the [testimonial-
nontestimonial] line it falls.”).
1. The Confrontation Clause
The Sixth Amendment’s Confrontation Clause, which is binding on
the States through the Fourteenth Amendment, provides: “In all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him.” The ““‘central concern’”” of the Confrontation Clause is “‘“to
ensure the reliability of the evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding before the trier of fact.’””
State v. Smith, 2019-Ohio-3257, 141 N.E.3d 590, ¶ 10 (1st Dist.), quoting State v.
Madrigal, 87 Ohio St.3d 378, 384, 721 N.E.2d 52 (2000), quoting Maryland v.
Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); see also Michigan
v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) (“Even where
* * * an interrogation is conducted with all good faith, introduction of the resulting
statements at trial can be unfair to the accused if they are untested by cross-
examination. Whether formal or informal, out-of-court statements can evade the
basic objective of the Confrontation Clause, which is to prevent the accused from
being deprived of the opportunity to cross-examine the declarant about statements
taken for use at trial.”).
The admission of a testimonial, out-of-court statement by a declarant
who does not testify at trial violates the Confrontation Clause unless the declarant is
unavailable and the defendant had a prior opportunity to cross-examine the
declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004); see also Garfield Hts. v. Winbush, 187 Ohio App.3d 302, 2010-Ohio-
1658, 931 N.E.2d 1148, ¶ 17 (8th Dist.) (“If a statement is testimonial, then the
Confrontation Clause requires a showing of both the declarant’s unavailability and
the defendant’s opportunity to have previously cross-examined the declarant. * * *
If the statement is nontestimonial, it is merely subject to the regular admissibility
requirements of the hearsay rules.”), citing State v. Siler, 116 Ohio St.3d 39, 2007-
Ohio-5637, 876 N.E.2d 534, ¶ 21.
Once Jones objected to the admissibility of Dumas’ out-of-court
statements, the state, as the proponent of the evidence, bore the burden of
establishing the admissibility of the statements. See, e.g., State v. Hill, 12th Dist.
Butler No. CA80-05-0053, 1981 Ohio App. LEXIS 14266, 4 (Mar. 1, 1981) (“The
burden of proving facts which must be established to make evidence admissible is
upon the party seeking to introduce the evidence.”); cf. State v. Stover, 9th Dist.
Wayne No. 13CA0035, 2014-Ohio-2572, ¶ 12 (the state, as the party seeking to admit
statement under excited-utterance exception to the hearsay rules, had the burden to
prove that the statement was made while the declarant was still under the stress of
the event); see also United States v. Duron-Caldera, 737 F.3d 988, 993 (5th
Cir.2013) (‘“[T]he government bears the burden of defeating [a] properly raised
Confrontation Clause objection by establishing that its evidence is
nontestimonial.’”), quoting United States v. Jackson, 636 F.3d 687, 695, fn. 4 (5th
Cir.2011); Arnold, 486 F.3d at 192 (noting that “the government ha[d] met its
burden of proving that [declarant’s] statements to the 911 operator and at the scene
were nontestimonial”). We review evidentiary rulings that implicate the
Confrontation Clause de novo. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, 70 N.E.3d 508, ¶ 97.
Regardless of whether Dumas was “available” to testify at trial,18 there
is no dispute that Jones did not have a prior opportunity to cross-examine her
regarding the statements at issue. Accordingly, if the statements Dumas made were
testimonial, Jones was denied his right of confrontation.
2. “Testimonial” Statements and the Primary Purpose Test
In Crawford, the Court held that statements made by the defendant’s
wife during a police interrogation while in police custody were testimonial and could
not be admitted under the Confrontation Clause when the wife did not testify at trial.
Crawford, 541 U.S. at 38-41, 65-66, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177.
Crawford did not offer an “exhaustive definition” of what constitutes a “testimonial”
statement. Ohio v. Clark, 576 U.S. 237, 243, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015);
18 Although there appear to have been discussions off-the-record regarding Dumas’
condition, there is no medical evidence in the record that clearly establishes whether
Dumas was mentally or physically unable or “unavailable” to testify at trial.
Crawford at 68 (“We leave for another day any effort to spell out a comprehensive
definition of ‘testimonial.’”). However, the Court stated that “[w]hatever else the
term covers, it applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations.” Id. at 68.
Following Crawford, courts have “labored to flesh out what it means for a statement
to be ‘testimonial.’” Clark at 244.
The United States Supreme Court announced the “primary purpose
test” in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
Where a statement is made “in the course of police interrogation,” including
statements made to a “police agent” such as a 911 operator,19 whether a statement is
testimonial depends on the “primary purpose” of the statements. Davis at 822;
Bryant at 370. The Court explained that statements are non-testimonial “when
made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” Davis at 822. Statements are
testimonial “when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution.” Id.19 The Court noted that “[i]f 911 operators are not themselves law enforcement
officers, they may at least be agents of law enforcement when they conduct interrogations
of 911 callers.” Davis at 823, fn. 2. For purposes of Davis, the Court “consider[ed] their
acts to be the acts of police.” Id. Furthermore, the fact that statements may be
“volunteered” during an interaction with police does not preclude them from being
testimonial. Davis at 822-823, 827, fn. 1 (noting that “volunteered testimony” is still
testimony and remains subject to the requirements of the Confrontation Clause).
Davis identified four characteristics that distinguish non-testimonial
statements from testimonial statements: (1) the declarant describes
contemporaneous events as they are actually occurring rather than describing past
events, (2) an objective ongoing emergency exists, (3) the nature of what is asked
and answered, viewed objectively, is necessary to be able to resolve the emergency
and (4) the interview is of an informal nature. Davis at 826-828; see also Cleveland
v. Johnson, 8th Dist. Cuyahoga No. 107930, 2019-Ohio-3286, ¶ 18.
In Bryant, the United States Supreme Court clarified “what Davis
meant” by “an ongoing emergency” and its role in determining the “primary
purpose” of an interrogation. Bryant, 562 U.S. at 359, 131 S.Ct. 1143, 179 L.Ed.2d
93. In that case, the Court held that statements a mortally wounded shooting victim
made to police officers about his assailant (i.e., the identity and description of the
shooter and the location of the shooting) in a gas station parking lot (after he had
been shot by the assailant outside the assailant’s house and had driven himself to
the parking lot) were not testimonial because the circumstances objectively
indicated that the primary purpose of the interrogation was to enable police
assistance to address an ongoing emergency, rather than to establish evidence for
prosecution. The victim was unavailable to testify at trial because he died shortly
after the shooting, so police officers testified at trial about what the victim had told
them. Id. at 348-350.
In Bryant, the Court indicated that “Davis requires a combined
inquiry that accounts for both the declarant and the interrogator” and that “[i]n
many instances, the primary purpose of the interrogation will be most accurately
ascertained by looking to the contents of both the questions and the answers.”
Bryant at 367-368. The Court held that, in applying the primary purpose test, courts
must objectively evaluate “all of the relevant circumstances” and determine “the
purpose that reasonable participants would have had, as ascertained from the
individuals’ statements and actions and the circumstances in which the encounter
occurred”:
An objective analysis of the circumstances of an encounter and the
statements and actions of the parties to it provides the most accurate
assessment of the “primary purpose of the interrogation.” The
circumstances in which an encounter occurs — e.g., at or near the scene
of the crime versus at a police station, during an ongoing emergency or
afterwards — are clearly matters of objective fact. The statements and
actions of the parties must also be objectively evaluated. That is, the
relevant inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but rather the purpose
that reasonable participants would have had, as ascertained from the
individuals’ statements and actions and the circumstances in which the
encounter occurred. * * * When a court must determine whether the
Confrontation Clause bars the admission of a statement at trial, it
should determine the “primary purpose of the interrogation” by
objectively evaluating the statements and actions of the parties to the
encounter, in light of the circumstances in which the interrogation
occurs.
Id. at 359-360, 369, 370-371.
Such circumstances include the medical condition of the declarant.
The Court explained:
[A] severely injured victim may have no purpose at all in answering
questions posed; the answers may be simply reflexive. The victim’s
injuries could be so debilitating as to prevent her from thinking
sufficiently clearly to understand whether her statements are for the
purpose of addressing an ongoing emergency or for the purpose of
future prosecution.
Id. at 368-369. The Court cautioned, however, that ‘“taking into account [a] victim’s
medical state does not * * * rende[r] non-testimonial” “all statements made while
the police are questioning a seriously injured complainant.” Id. at 364, quoting
People v. Bryant, 483 Mich. 132, 149, 768 N.W.2d 65 (Mich.2009).
Addressing the significance of an “ongoing emergency” in
determining whether a declarant’s statements are testimonial, the Court stated that
although “the existence vel non of an ongoing emergency” is not “dispositive of the
testimonial inquiry,” it is “among the most important circumstances” that “informs
the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” Bryant,
562 U.S. at 361, 367, 374, 131 S.Ct. 1143, 179 L.Ed.2d 93.20 The Court explained:
The existence of an ongoing emergency is relevant to determining the
primary purpose of the interrogation because an emergency focuses the
participants on something other than “prov[ing] past events potentially
relevant to later criminal prosecution.” Davis, 547 U.S. at 822, 126
S.Ct. 2266, 165 L.Ed.2d 224. Rather, it focuses them on “end[ing] a
threatening situation.” Id. at 832. Implicit in Davis is the idea that
because the prospect of fabrication in statements given for the primary
purpose of resolving that emergency is presumably significantly
diminished, the Confrontation Clause does not require such statements
to be subject to the crucible of cross-examination.
Bryant at 361. In other words:
20 Although the United States Supreme Court has recognized that “there may be
other circumstances, aside from ongoing emergencies, when a statement is not procured
with a primary purpose of creating an out-of-court substitute for trial testimony,” see
Bryant at 358; Clark, 576 U.S. at 244-245, 135 S.Ct. 2173, 192 L.Ed.2d 306, no one has
claimed that any such “other circumstance” existed in this case. Accordingly, we do not
further address that issue here.
The existence of an emergency or the parties’ perception that an
emergency is ongoing is among the most important circumstances that
courts must take into account in determining whether an interrogation
is testimonial because statements made to assist police in addressing
an ongoing emergency presumably lack the testimonial purpose that
would subject them to the requirement of confrontation. * * * [T]he
existence and duration of an emergency depend on the type and scope
of danger posed to the victim, the police, and the public.
Id. at 370-371. “[W]hether an emergency exists and is ongoing is a highly context-
dependent inquiry.” Id. at 363.21
3. The Objective Witness Test and Dumas’ Statements to
Campbell
While the Ohio Supreme Court has applied the primary purpose test
in determining whether statements to law enforcement personnel are testimonial, it
has applied an “objective witness” test in determining whether statements made to
someone other than law enforcement personnel were testimonial. See, e.g., State v.
Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 161; State v. Stahl, 111
Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36. Under the objective witness
test, out-of-court statements made to non-law enforcement persons are considered
testimonial for Confrontation Clause purposes if “made ‘under circumstances which
would lead an objective witness reasonably to believe that the statement would be
21 Factors the Court identified as relevant to determining whether an ongoing
emergency exists include: whether physical violence is presently occurring; whether the
dispute is a private or public dispute; whether there is an ongoing threat to police or the
public; whether the perpetrator’s location is known or unknown; whether the perpetrator
and victim are separated; the motive(s) of the perpetrator (if known); whether the
perpetrator is armed and, if so, the type of weapon(s) the perpetrator has; the victim’s
medical condition and whether medical assistance is required and whether the scene is
secured. See generally Bryant.
available for use at a later trial.’” Stahl at ¶ 36, quoting Crawford, 541 U.S. at 52,
124 S.Ct. 1354, 158 L.Ed.2d 177; Jones at ¶ 161. Under the objective witness test,
the focus is on the expectation of the declarant at the time of making the statement;
the intent of a questioner is relevant only if it could affect a reasonable declarant’s
expectations. Stahl at ¶ 36; Jones at ¶ 161
However, Jones and Stahl were decided before the United States
Supreme Court’s decision in Clark, 576 U.S. 237, 135 S.Ct. 2173, 192 L.Ed.2d 306.
In Clark, the United States Supreme Court considered the
admissibility of out-of-court statements a three-year-old had made in response to
inquiries by her preschool teachers after the teachers discovered red marks on the
child. Id. at 241. In questioning the child, the teachers were seeking to determine
whether it was safe to release the child back to his guardian — who may or may not
have been the child’s abuser. Id. at 246-247. Observing that the case presented a
question that the Court had “repeatedly reserved” — i.e., “whether statements to
persons other than law enforcement officers are subject to the Confrontation
Clause” and, if so, “whether the same analysis applies to statements made to
individuals other than the police” — the Court “decline[d] to adopt a categorical rule
excluding them from the Sixth Amendment’s reach,” reasoning that “at least some
statements to individuals who are not law enforcement officers could conceivably
raise confrontation concerns.” Id. at 245-246. The Court then applied the primary
purpose test in evaluating whether the child’s statements to his teachers were
testimonial. Id. at 246-247. The Court held that the Confrontation Clause did not
prohibit prosecutors from introducing the child’s statements identifying the
defendant as his abuser where the child was not available to be cross-examined
because the child’s statements to his teachers were not testimonial, i.e., that
“[b]ecause neither the child nor his teachers had the primary purpose of assisting in
[the defendant’s] prosecution, the child’s statements [did] not implicate the
Confrontation Clause and therefore were admissible at trial.” Id. at 240, 246.
The Court explained:
[A]lthough we decline to adopt a rule that statements to individuals
who are not law enforcement officers are categorically outside the Sixth
Amendment, the fact that [the child] was speaking to his teachers
remains highly relevant. Courts must evaluate challenged statements
in context, and part of that context is the questioner’s identity. * * *
Statements made to someone who is not principally charged with
uncovering and prosecuting criminal behavior are significantly less
likely to be testimonial than statements given to law enforcement
officers. * * * It is common sense that the relationship between a
student and his teacher is very different from that between a citizen and
the police. We do not ignore that reality. In light of these
circumstances, the Sixth Amendment did not prohibit the State from
introducing [the child’s] statements at trial.
Id. at 249.
After Clark, this court and several others continued to apply the
objective witness test in evaluating whether statements made to someone other than
law enforcement personnel are testimonial under the Confrontation Clause often
without specifically addressing Clark. See, e.g., Carter, 2018-Ohio-3671, 119 N.E.3d
896, ¶ 37-40 (8th Dist.); Columbus v. C.G., 10th Dist. Franklin No. 19AP-121, 2021-
Ohio-71, ¶ 42-45; State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438,
¶ 14-18. But see State v. James, 7th Dist. Mahoning No. 18 MA 0064, 2020-Ohio-
4289, ¶ 25-28.
In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d
1028, the Ohio Supreme Court cited Jones, without mentioning Clark, and stated
that “whether a statement to a person who is not a law-enforcement officer is
testimonial depends on the expectations of the declarant: would the declarant have
reasonably believed that the statement would be available for later use at trial.” Id.
at ¶ 182, citing Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, at ¶ 161.
We need not decide in this case whether Clark compels the
application of the primary purpose test, rather than the objective witness test, in
determining whether statements made t0 non-law enforcement personnel are
testimonial for Confrontation Clause purposes because it would not change the
result here. Cf. State v. Cook, 5th Dist. Fairfield No. 18-CA-43, 2019-Ohio-3650,
¶ 38 (observing that “[w]hile described differently,” the “objective witness” test was
“sufficiently similar” to the Clark “primary purpose” test in the context of that case
and did not lead to a different result in determining whether statements at issue
were testimonial); see also McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, at ¶ 185 (‘“Statements to friends and neighbors about abuse and
intimidation’ are nontestimonial.”), quoting Giles v. California, 554 U.S. 353, 376,
128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); James at ¶ 28 (“Statements about assaults
to family members or friends are generally non-testimonial statements.”),
citing State v. Craig, 7th Dist. Mahoning No. 18 MA 0102, 2020-Ohio-1102, ¶ 63.
There is nothing in the record to suggest that an objective declarant
in Dumas’ position would reasonably believe that her statements to her retired
neighbor — made while Dumas was in significant pain and while requesting a ride
to the hospital to seek emergency medical care for her burn injuries — would be
available for later use at trial. The record reflects that Dumas’ primary purpose — if
not sole purpose — in speaking with Campbell and telling her what had happened
was to get to the hospital, where she could receive medical care. The record reflects
that Campbell’s purpose, if any, in communicating with Dumas was to see how she
could assist Dumas in obtaining necessary medical care. Accordingly, Dumas’
statements to Campbell were not testimonial, and the admission of Dumas’
statements to Campbell did not violate Jones’ rights under the Confrontation
Clause. Cf. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, at ¶ 162
(wife’s statements to a friend, while crying and hysterical, regarding husband’s
involvement in a murder were non-testimonial); Carter, 2018-Ohio-3671, 119
N.E.3d 896, at ¶ 39 (victim’s statements made immediately after shooting, while
victim was in the bathroom of the bar, barely conscious, in which he reported what
had happened to a cousin and friend, were non-testimonial); State v. Zadar, 8th
Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 34-35, 38 (victim’s statements to
friend and therapist about her fear of defendant’s volatile behavior and outbursts
were not testimonial); State v. Peeples, 7th Dist. No. 07 MA 212, 2009-Ohio-1198,
¶ 28-31 (assault victim’s statements to a friend that the defendant “beat her up real
bad” and he broke her china cabinet while he was beating her were non-testimonial).
However, determining that Dumas’ statements to Campbell were not
testimonial does not end our inquiry. We must also determine whether her
statements were admissible under the rules of evidence.
Even if an out-of-court statement is non-testimonial, for evidence of
that statement to be properly admitted at trial, it must also be admissible under the
rules of evidence, including the rules against the admission of hearsay. In this case,
the state contends that the excited-utterance exception applies.
An excited utterance is “[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). For a statement to be admissible as an excited
utterance, four prerequisites must be satisfied: (1) there must be a startling event
that produces a nervous excitement in the declarant, (2) the statement must have
been made while the declarant was still under the stress of excitement caused by the
event, (3) the statement must relate to the startling event and (4) the declarant must
have personally observed the startling event. See, e.g., State v. Renode, 8th Dist.
Cuyahoga No. 109171, 2020-Ohio-5430, ¶ 27, citing State v. Taylor, 66 Ohio St.3d
295, 300-301, 612 N.E.2d 316 (1993), and Jones, 135 Ohio St.3d 10, 2012-Ohio-
5677, 984 N.E.2d 948, at ¶ 166.
“There is no per se amount of time after which a statement can no
longer be considered to be an excited utterance.” Taylor at 303. “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 the result of reflective thought.”
(Emphasis deleted.) Id.In this case, each of these requirements were met as to Dumas’
statements to Campbell. Here, there is no dispute that there was a startling event
and that Dumas personally observed the startling event, i.e., she was the person on
fire. Her statements to Campbell related to the startling event, explaining how she
was injured and who was responsible and were made while she was still under the
stress of excitement from the startling event. Although Campbell described Dumas’
demeanor as “calm,” Donnellan described her a few minutes later as appearing “very
out of it” and “scared,” and the record further reflects that Dumas was suffering from
“life-threatening” burns and was in severe pain at the time of her statements to
Campbell. In the 911 call, made minutes later, Dumas’ voice exhibits clear signs of
stress and distress as she sought assistance in getting to the hospital.
Accordingly, the trial court did not err or abuse its discretion in
admitting evidence of Dumas’ statements to Campbell at trial. Dumas’ statements
to Campbell were non-testimonial and were admissible under the excited utterance
exception to the hearsay rule.
4. Dumas’ Statements to Law Enforcement
As stated above, we apply the primary purpose test in determining
whether the statements Dumas made during the 911 call and police interviews are
testimonial.
a. Dumas’ Statements on the 911 Call
Statements a caller makes during a 911 call are often found to be
non-testimonial and are admissible if the statements satisfy a hearsay exception.
State v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 61 (8th Dist.). This is because
a 911 caller is typically “speaking about events as they [are] actually happening” and
“[a]lthough one might call 911 to provide a narrative report of a crime absent any
imminent danger,” 911 callers are usually facing ongoing emergencies. (Emphasis
deleted.) Davis, 547 U.S. at 827, 126 S.Ct. 2266, 165 L.Ed.2d 224 (“A 911 call * * *
and at least the initial interrogation conducted in connection with a 911 call, is
ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to
describe current circumstances requiring police assistance.”). Under such
circumstances, the 911 caller is not testifying, the 911 caller is not acting as a witness
and the statements of the 911 caller are not testimonial in nature. Id. at 827-828.
However, as the United States Supreme Court recognized in Davis,
not every 911 call — and not every statement made during a 911 call — is non-
testimonial. See, e.g., id. at 828-829.
In Davis, the victim did not testify at Davis’ trial; instead, the state
introduced a recording of portions of her conversation with the 911 operator. The
issue in that case was whether the portion of the victim’s 911 call identifying Davis
as her assailant was testimonial. Id. at 829. At the beginning of the call, the victim
told the 911 operator that “[h]e’s here jumpin’ on me again,” that “[h]e’s usin’ his
fists” and that her assailant had not been drinking. The 911 operator then asked the
victim the name of her assailant. After she identified her assailant as Davis, the
victim told the operator, “He’s runnin’ now.” The victim informed the 911 operator
that Davis had “just r[un] out the door” and that he was leaving in a car with
someone else. Id. at 817-818. The Court held that the portion of the 911 call that
included the identification of Davis as the assailant was non-testimonial because (1)
the victim was “speaking about events as they were actually happening” rather than
describing past events, (2) the victim’s call was “plainly a call for help against a bona
fide physical threat,” (3) the victim’s “frantic answers were provided over the phone,
in an environment that was not tranquil, or even * * * safe” and (4) the “nature of
what was asked and answered * * * viewed objectively, was such that the elicited
statements were necessary to be able to resolve the present emergency” rather than
simply learn what had happened in the past. (Emphasis deleted.) Id. at 827.
However, the Court cautioned that other portions of the 911 call —
i.e., the victim’s statements to the 911 operator after Davis had left the premises —
could be testimonial:
In this case, for example, after the operator gained the information
needed to address the exigency of the moment, the emergency appears
to have ended (when Davis drove away from the premises). The
operator then told [the victim] to be quiet, and proceeded to pose a
battery of questions. It could readily be maintained that, from that
point on, [the victim’s] statements were testimonial, not unlike the
“structured police questioning” that occurred in Crawford, 541 U.S. at
53, fn. 4, 124 S.Ct. 1354, 158 L.Ed.2d 177.
Davis at 828-829.22 The Court noted that the Washington Supreme Court had
concluded that even if later parts of the call were testimonial, their admission was
harmless beyond a reasonable doubt. Because Davis did not challenge that holding,
the Court simply “assume[d] it to be correct” and did not further address the issue.
Id. at 829; see also Bryant, 562 U.S. at 363, 131 S.Ct. 1143, 179 L.Ed.2d 93.
In this case, viewing objectively all the relevant facts and
circumstances, we agree with the trial court that Dumas’ statements to the 911
operator and EMS dispatcher were non-testimonial, and that admission of those
statements did not violate Jones’ rights under the Confrontation Clause.
It is clear from the record that Dumas’ primary purpose in calling
911 and providing statements to the 911 operator and EMS dispatcher was to obtain
immediate emergency medical assistance, i.e., to resolve an existing medical
emergency. Although Dumas requests both police assistance and an ambulance in
the 911 call, Dumas called 911 only after she asked her neighbor to drive her to the
22 Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), also
a domestic violence case, was decided with Davis. In that case, police questioned a victim
of domestic violence on scene after she had been separated from her assailant. A police
officer asked her what had happened and, after hearing her account, had her fill out and
sign a battery affidavit. Id. at 819-820. The victim was subpoenaed but did not appear to
testify at trial. The state called the police officer who had questioned the victim to testify
regarding what she had told him and to authenticate her affidavit. Id. The Court
determined that because there was “no emergency in progress” and the victim’s
statements “were neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation,” but rather, were a “deliberate[] recount[ing]
* * * how potentially criminal past events began and progressed,” “the primary, if indeed
not the sole, purpose of the interrogation was to investigate a possible crime” and the fact
that the victim’s statements were in response to “initial inquires” was “immaterial.” Id.
at 829-832. As such, the victim’s statements were testimonial and admission of the police
officer’s testimony regarding those statements violated the Confrontation Clause. Id.hospital and her neighbor told Dumas she did not drive at night and that they should
call 911. At the time of her call, Dumas was suffering from life-threatening burn
injuries. Dumas’ voice, as heard on the 911 call, exhibits clear signs of distress and
pain. She states that she was set on fire, that she had suffered burns to her face,
arms and chest and that she needed to get to a hospital. When EMS arrived a few
minutes later, Dumas rated her pain as a 1o-out-of-10 and continued to rate her pain
as a 10-out-of-10 ten minutes later, even after receiving 50 micrograms of fentanyl
for pain management.
With respect to the purpose of the 911 operator and EMS dispatcher
in questioning Dumas, it is clear their questions were directed to determining (1) the
cause, nature and extent of Dumas’ injuries to identify the need for emergency
services, (2) whether there was any other ongoing emergency to which police, fire or
other first responders might need to respond, e.g., whether anything was still on fire
or smoldering, whether anyone else was still be in the house or whether everyone
was out and safe and (3) information necessary to provide appropriate instructions
for care while Dumas was awaiting the arrival of EMS. Accordingly, the trial court
did not err in determining that Dumas’ statements on the 911 call were non-
testimonial.
Once again, however, the determination that Dumas’ statements on
the 911 call were non-testimonial does not end our inquiry. We must also consider
whether such statements were admissible under the hearsay rules.
The admission of a statement as an excited utterance “is not
precluded by 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, and (3) does not destroy the domination of the nervous excitement over
the declarant’s reflective faculties.” State v. Wallace, 37 Ohio St.3d 87, 524 N.E.2d
466 (1988), paragraph two of the syllabus; see also Jacinto, 2020-Ohio-3722, 155
N.E.3d 1056, at ¶ 176.
As with Dumas’ statements to her neighbor, Dumas’ statements on
the 911 call — which occurred within a few minutes of the statements Dumas made
to her neighbor — were made at a time when Dumas was clearly still under the stress
of the event that she had personally observed. As noted above, her distress and
urgent need for medical assistance can be heard in her voice on the 911 call. The
statements at issue related to the startling event; the questions from the 911 operator
and EMS dispatcher were not coercive or leading; and there is nothing to suggest
that Dumas’ statements to the 911 operator and EMS dispatcher were the result of
reflective thought.
As such, Dumas’ statements on the 911 call qualified as “excited
utterances” under Evid.R. 803(2). The trial court did not err or abuse its discretion
in admitting the recording of Dumas’ 911 call (or Rice’s testimony regarding the call)
at trial.
As to the evidence of statements Dumas made to Donnellan,
Potchatek, Strehle and Sims, however, we reach a different conclusion.
b. Dumas’ Statements to Donnellan at Campbell’s House
In addition to the statements Dumas made to her neighbor, the 911
operator and the EMS dispatcher, the state also introduced evidence of statements
Dumas made to several police officers following the incident. The first of these
statements were the statements Donnellan elicited when questioning Dumas at
Campbell’s house after he arrived on the scene. Donnellan testified regarding his
questioning of Dumas at Campbell’s home and the state compounded his testimony
by introducing body camera footage (state exhibit No. 1) capturing their
conversation.
The state argues that this case is similar to Merritt, 2016-Ohio-4693,
69 N.E.3d 102, i.e., “[l]ike the officers in Merritt, the arriving officers were unaware
of the perpetrator’s identity or location, whether he possessed a weapon, whether
others were involved or posed a danger to the public and whether the scene was
secure,” and that Dumas’ statements to Donnellan should be deemed non-
testimonial because the purpose of Donnellan’s “brief conversation” with Dumas
was “merely to elicit some basic information * * * so that an effective police response
could be mounted.” We disagree.
As stated above, we recognize that an ongoing emergency can exist
after the original threat to the victim has ceased to exist if there is a continuing threat
to police or the public or the victim is in need of emergency medical services.
However, this does not mean that an alleged victim’s responses to “initial inquiries”
by police officers are always non-testimonial. See Davis, 547 U.S. at 832, 126 S.Ct.
2266, 165 L.Ed.2d 224 (rejecting the “implication that virtually any ‘initial inquiries’
at the crime scene” will be non-testimonial). Bryant instructs that a court must
consider “all of the relevant circumstances,” including whether an ongoing
emergency exists and the perspectives of both the declarant and the interrogator in
determining the primary purpose of an interrogation and whether a declarant’s
statements are testimonial. Bryant, 562 U.S. at 369, 131 S.Ct. 1143, 179 L.Ed.2d 93.
In Merritt, two police officers, Buettner and Hardy, responded to an
anonymous domestic violence call at a residence. Upon arrival, the officers found
the victim, upset and crying, with bruises on her face, a black eye and a split lip.
Merritt at ¶ 2. As the officers attempted to speak with the victim, the defendant,
Merritt, came outside and Hardy took him aside. Id. The officers were not aware,
at that time, that Merritt was the alleged attacker. Id. The victim, “upon being
pulled aside” by Buettner, “hysterically related” to Buettner that Merritt “had struck
her and smashed her head against the wall” after they had returned home from a bar
and had an argument. Id. Hardy separately interviewed the victim approximately
30 minutes after the assault. The victim did not testify and Merritt was convicted of
domestic violence based on the officers’ testimony regarding the victim’s
statements. Id. at ¶ 4. On appeal, Merritt argued that admission of the officers’
testimony violated his rights under the Confrontation Clause. Id. at ¶ 7.
At issue in Merritt was the admissibility of two sets of statements by
the victim: (1) the statements the victim made to Buettner “upon the initial inquiry
and before the victim calmed herself” and (2) the statements the victim made to
Hardy approximately 30 minutes after the assault, after she had calmed down. Id.
at ¶ 11. Because Hardy’s testimony regarding the victim’s statements was not in the
appellate record, the court evaluated only Buettner’s testimony. Id. The court
reasoned that if Buettner’s testimony regarding the victim’s statements was
admissible, any error in the admission of Hardy’s “duplicative testimony” would be
harmless.23 Id.
In determining that the victim’s statements to Buettner were non-
testimonial under the primary purpose test, the court rejected “a bright-line rule —
that an initial inquiry occurring immediately after the officers’ arrival, but after
separating a domestic abuse victim from the later-identified offender, automatically
ends the ongoing emergency so that none of the statements from the initial inquiry
are admissible.” Id. at ¶ 9, 14, 18-19, 24 (“Buettner’s interrogation was not
objectively for investigative purposes solely because police officers arrived and
23 It is not clear from the opinion how the court determined that Hardy’s testimony
was “duplicative” of Buettner’s testimony given that Hardy’s testimony regarding the
victim’s statements was not in the appellate record. The opinion states that “[t]here is no
evidence that the officers conducted a joint interview of the victim. From the record, it
appears that both officers interviewed the victim separately.” Merritt at ¶ 3. It was,
however, Merritt’s burden, as the appellant, to show error by reference to matters in the
record. If portions of the transcript necessary for resolution of Merritt’s assigned errors
were omitted from the record, the court had “nothing to pass upon” as to those assigned
errors and had “no choice but to presume the validity of the lower court’s proceedings,
and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384(1980), citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978); see also Merritt
at ¶ 1 (“Although this case implicates constitutional principles of great importance, it was
not presented as such by [appellant], from whom we received limited briefing that was
based on an overruled Ohio Supreme Court decision and ignored case law from this
district. We are not appellate advocates and have no obligation to independently research
and present arguments in favor of reversal that were not provided by an appellant.”),
citing App.R. 16(A)(7). The court affirmed Merritt’s conviction “after considering
[appellant’s] arguments.” Merritt at ¶ 1.
separated the parties. The ongoing emergency does not cease merely because police
officers arrive, or the victim is not currently being abused or is temporarily separated
from the later-identified abuser. * * * [W]hether an ongoing emergency exists is an
inquiry not readily refined into a simple proposition that the police responded or the
parties were separated, and therefore, the emergency ceased.”).
“Objectively reviewing the record,” the court found that “Buettner’s
primary purpose for making the initial inquiry was to ascertain whether police or
medical assistance was necessary and to determine the identity of the alleged
offender in order to secure the scene, not to investigate the crime for future
prosecution.” Id. at ¶ 23. The court explained:
Our conclusion is fortified by the fact that the questioning was informal
— the victim had been simply pulled aside at the then active crime
scene; and when Officer Buettner questioned the victim, he was not
aware of the perpetrator’s identity or location, whether the perpetrator
possessed a weapon, whether others were involved or posed a danger
to the public, or whether the scene was secure. Only basic information
describing the circumstances of the police response was elicited. At the
time Merritt was pulled aside, the officers had no way of knowing who
Merritt was and how he was involved. To determine that, they needed
to ask the victim for basic information vital to an effective police
response. * * * Moreover, Officer Buettner was also not able to
determine the seriousness of the victim’s injuries until after speaking
with her. That the information obtained could be used in a future
prosecution is irrelevant.
Id. at ¶ 22.
This case is different. In Merritt, the victim had been “simply pulled
aside” from her attacker, “at the then active crime scene.” Police did not know who
the assailant was, how he was involved or whether he had a weapon and the victim
was “hysterical,” upset and crying, with visible injuries the seriousness of which was
unknown. Dumas’ statements to Donnellan were made an hour after the incident,
after Dumas had left her house and gone to Campbell’s house. At the time Donnellan
was questioning Dumas, Dumas was not just “separated” from Jones24 or removed
from the scene; she was, by her own account, “safe and out of danger” and in the
custody of paramedics, receiving medical care and being prepared for transport to
the hospital. The fire was out (and, as evidenced by the body camera footage,
Donnellan knew this) and there is nothing in the record to indicate that Jones had a
24 We recognize that “separation between a victim and the attacker is not dispositive of
the ongoing emergency determination” and that “[a]n ongoing emergency can exist after
the original threat to the victim has ceased to exist if there is a potential threat to police or
the public or the victim is in need of emergency medical services” or “authorities must
determine whether to release the victim back into a potentially abusive environment.”
Merritt at ¶ 10, 19. However, this is not such a case. This case is not only distinguishable
from Merritt, as discussed above, but from cases like Johnson, 2019-Ohio-3286, at ¶ 19-20
(although victim was separated from perpetrator, victim’s statements to police at park
“shortly” after altercation — when victim was concerned perpetrator was “still at her house,
‘tearing [it] up,’” and would be at the house when her children came home, posing a physical
threat to them — were not testimonial), Cleveland v. Williams, 8th Dist. Cuyahoga No.
101588, 2015-Ohio-1739, ¶ 21 (ongoing emergency was still in progress even though the
offender had left the scene because the assault occurred “just moments before” the police
arrived at the scene, the victim was still at the scene, was injured and crying and her safety
had not yet been secured), State v. Sanchez, 8th Dist. Cuyahoga Nos. 93569 and 93570,
2010-Ohio-6153, ¶ 20 (victim’s statements to police at the scene of assault were non-
testimonial where although perpetrator had left the scene, “the events * * * occurred just
moments before police arrived,” the perpetrator had not yet been apprehended and the
victim was injured and crying such that “the emergency was still in progress”), and
Cleveland v. Colon, 8th Dist. Cuyahoga No. 87824, 2007-Ohio-269, ¶ 23 (circumstances
objectively indicated that the primary purpose of interrogation was to enable police to assist
victim in an ongoing emergency where offender had left the scene before the police arrived,
the incident had just concluded and the victim was found “hysterical,” bleeding, upset and
crying with objective signs of abuse when officers first made contact and victim related what
had occurred). In this case, Dumas was being transported to the hospital; she was not being
“released back” to her home.
weapon or, at that time, otherwise posed an immediate threat to Dumas or to the
public. Accordingly, at the time of Donnellan’s questioning of Dumas, Dumas was
no longer “acting * * * to secure protection or medical care.” Beasley, 153 Ohio St.3d
497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 183. Although Dumas had not yet been
transported to the hospital, from Dumas’ perspective, the emergency for which she
had sought assistance had effectively ended before Donnellan began questioning
her. Cf. State v. Steele, 8th Dist. Cuyahoga No. 91571, 2009-Ohio-4704, ¶ 39
(statements victim made to police officer while in the ambulance and at the
emergency room were testimonial because emergency no longer existed).
The dispute that reportedly led to the assault was a private dispute,
the alleged assailant was known to Dumas and there is nothing in the record to
indicate that he was believed to have a weapon25 or that he otherwise presented an
immediate physical threat to Dumas or the public at the time of Donnellan’s
interrogation.
Further, in determining the “primary purpose” of a declarant’s
statements, it is not only the context of the interrogation, but the substance of what
25 On cross-examination, Donnellan testified that he told fire department
personnel that someone might have weapons in the house. However, he could not state
where or from whom he obtained this information. Donnellan speculated that it might
have been information he received from dispatch but that he did not know. Donnellan
acknowledged that Dumas never mentioned a gun to him when he interviewed her at
Campbell’s home (and there is no indication in the record that he even asked her about a
weapon). The record likewise reflects that Dumas did not provide such information to
the 911 operator or the EMS dispatcher during the 911 call. Accordingly, there is no
evidence in the record that Jones, in fact, had a weapon or that Dumas believed (or told
anyone) that he might have had access to a weapon.
is asked and answered that matters. Simply because Dumas had sustained serious
injuries and Jones had not yet been apprehended did not render all of the statements
she made while the police were questioning her non-testimonial. ‘“[A] conversation
which begins as an interrogation to determine the need for emergency assistance’
can ‘evolve into testimonial statements once the initial purpose has been achieved.”’
Bryant, 562 U.S. at 365, 131 S.Ct. 1143, 179 L.Ed.2d 93, quoting Davis, 547 U.S. at
828, 126 S.Ct. 2266, 165 L.Ed.2d 224 (internal quotation marks omitted). Such an
“evolution” may occur if “a declarant provides police with information that makes
clear that what appeared to be an emergency is not or is no longer an emergency or
that what appeared to be a public threat is actually a private dispute” or “if a
perpetrator is disarmed, surrenders, is apprehended, or * * * flees with little prospect
of posing a threat to the public.” Bryant at 365.
Although the state asserts that Donnellan’s questions were directed
to “mounting” an “effective police response,” only the first of Donnellan’s questions
to Dumas — i.e., whether the alleged assailant was still in Dumas’ house — bore any
relationship to assessing whether there might be an existing risk to police (or to
anyone else).26 Donnellan’s remaining questions were directed to investigating and
26 For example, Donnellan did not ask Dumas whether there were any weapons in
the home or whether Jones otherwise had access to any weapons; he did not ask Dumas
where in the house the fire had been set and he did not ask Dumas whether anyone other
than Jones was in the house. Although the state asserts that “the identity of the
perpetrator” was important “to elicit an effective police response,” the officers’ actions
belie this claim. There is no evidence in the record that officers did anything with this
information once they learned of Jones’ identity to assess whether he posed an immediate
risk to officers or to the public. Further, even if Jones’ identity were relevant to police or
documenting what had happened — i.e., determining the identity of Dumas’ alleged
assailant, inquiring whether he had “dumped the gas on [her] in the house” and
inquiring as to how the alleged assailant had entered her home.27 These elicited
statements were not “necessary to be able to resolve [a] present emergency,” but
rather “to learn * * * what had happened in the past.” (Emphasis sic.) Bryant at 367.
Viewed objectively, the totality of the relevant circumstances
surrounding Donnellan’s interview of Dumas demonstrates that the “primary
purpose” of Dumas’ statements — made in response to Donnellan’s inquiries — in
which she identified Jones as her assailant and described what he had done, was to
provide an account of the assault that had allegedly occurred — i.e., to document
past events for purposes of a later criminal investigation or prosecution — and were,
therefore, testimonial. Dumas’s statements to Donnellan were simply ‘“a weaker
substitute for live testimony’ at trial.” Davis at 828, quoting United States v. Inadi,
475 U.S. 387, 394, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); cf. Smith, 2019-Ohio-3257,
141 N.E.3d 590, at ¶ 13 (declarant’s statements were testimonial where police did
not “focus on any exigent threat or safety concern in their questioning” but rather
“asked about what had happened, rather than what was happening, procuring
information about the past course of events, which then led to the charges against
public safety, Dumas had already identified Jones as her assailant and provided a
description of him during the 911 call.
27 It is also worth noting that at the time Donnellan was questioning Dumas, it had
not yet been determined which officer would be the “primary” on the case, responsible for
investigating and writing the report regarding the incident.
[defendant]”); Toledo v. Green, 2015-Ohio-1864, 33 N.E.3d 581, ¶ 21-25 (6th Dist.)
(where victim and alleged perpetrator were in separate rooms, the victim “seemed a
little upset” and “was a little bit loud” when police arrived and there was no bona
fide physical threat to the victim at the time of her statements to police, no ongoing
emergency existed and victim’s statements to police were testimonial); Jones, 135
Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, at ¶ 156-159 (witness’ statements
to police were testimonial where witness called police to report that her husband
had confessed to killing a woman, witness was not at an active crime scene, no gun
was involved in the murder and although police were still trying to identify and
apprehend an at-large perpetrator, who “initially * * * appeared to pose a continuing
threat to [witness] and maybe others,” police contact with witness was “did not occur
in the midst of an ongoing emergency”).
The fact that Dumas’ statements to Donnellan were presented
through both Donnellan’s testimony and the playing of Donnellan’s body camera
footage for the jury does not alter our analysis. The purpose of body cameras is to
record events in which law enforcement officers are involved to improve officer
safety, increase evidence quality, reduce civilian complaints and reduce agency
liability, see Hyland, Bureau of Justice Statistics, Body-Worn Cameras in Law
Enforcement Agencies, 2016 (Nov. 2018) — not to supplant the in-court testimony
of witnesses. Out-of-court statements that would otherwise be inadmissible do not
become admissible simply because they were captured on a police body camera.
Under circumstances like those here, statements recorded by police body cameras
cannot be used either to supplement the testimony of a witness or as a substitute for
the testimony of a witness.
Because Dumas’ statements were testimonial and Jones did not
have an opportunity to cross-examine Dumas regarding those statements, the trial
court’s admission of those statements violated the Confrontation Clause.28
c. Dumas’ Statements to Potchatek and Strehle
The trial court also admitted evidence of (1) statements Dumas made
during a brief exchange with Potchatek while Dumas was in the back of the
ambulance waiting to be transported to the hospital and (2) statements Dumas
made during an extended interview with Potchatek and Strehle while she was “being
treated” at the hospital in the emergency bay. When Potchatek’s attempted
interview of Dumas in the back of the ambulance was interrupted by EMS personnel
so Dumas could be transported to the hospital, the officers followed Dumas to the
hospital and continued the interview there.
As with Dumas’ statements to Donnellan, Dumas’ statements to
Potchatek and Strehle were made after Dumas had left her house, was separated
from her alleged assailant, was “safe and out of danger” and was in the custody, and
under the care, of medical providers. By the time Potchatek began questioning
28 Because we find that Dumas’ statements to Donnellan (and, as discussed below,
her statements to Potchatek, Strehle and Sims) identifying Jones as her assailant and
describing what he had done were testimonial and that admission of those statements
violated Jones’ rights under the Confrontation Clause, we need not (and do not) address
whether the statements were otherwise admissible, under the rules of evidence, as excited
utterances or under some other hearsay exception.
Dumas in the ambulance, Dumas’ house had been cleared and the scene had been
secured. Although Jones had not yet been apprehended and his whereabouts were
unknown when Potchatek was questioning Dumas in the ambulance, there is
nothing in the record to suggest that anyone was concerned that Jones might have
a weapon or otherwise believed Jones posed a risk to the public or to police at that
point. Any emergency had clearly ended. Thus, the circumstances of the interview
reflect that police “had moved from their purpose as first responders in this case —
locating the victim, evaluating her injuries, and securing the scene — to their
purpose of criminal investigation” before Potchatek’s interview began. State v.
Akers, 5th Dist. Delaware No. 20 CAC 08 0033, 2021-Ohio-2562, ¶ 24. Objectively
considering the totality of the relevant circumstances, Dumas’ statements to
Potchatek in the ambulance were testimonial.
Jones returned to the scene (and was then arrested) while Potchatek
and Strehle were questioning Dumas at the hospital. Donnellan advised Potchatek
of Jones’ return and arrest during that interview as the officers relayed information
back and forth between the scene and the hospital. At the hospital, the officers spoke
with Dumas “at great length,” and used the interview as “an investigative means” to
elicit detailed information from Dumas about what had occurred.
Viewed objectively, the totality of the relevant circumstances
surrounding Potchatek and Strehle’s interview of Dumas at the hospital, including
the formality of the interview, the length of the interview, its “investigative purpose,”
Dumas’ status and the status of the scene, demonstrate that the “primary purpose”
— if not the only purpose — of Potchatek and Strehle’s interrogation of Dumas was
to document past events for purposes of a later criminal investigation or
prosecution. Once again, Dumas’ statements to Potchatek and Strehle were simply
‘“a weaker substitute for live testimony’ at trial.” Davis, 547 U.S. at 828, 126 S.Ct.
2266, 165 L.Ed.2d 224, quoting Inadi, 475 U.S. at 394, 106 S.Ct. 1121, 89 L.Ed.2d
390. As such, they were testimonial.
Because Dumas’ statements to Potchatek and Strehle were
testimonial and because Jones did not have an opportunity to cross-examine Dumas
regarding those statements, the trial court’s admission of those statements at trial
violated the Confrontation Clause.
d. Dumas’ Statements to Sims
Finally, the trial court admitted testimony from Sims regarding
statements Dumas had made to him on approximately four occasions at the hospital
and another three occasions while she was in a nursing facility. Although Sims did
not identify the dates and times of any of his conversations with Dumas, it is clear
that his questioning of Dumas was far removed from any emergency. Sims readily
acknowledged that his purpose in questioning Dumas was his “continuing
investigation,” i.e., “to make sure * * * her statement was the same” as to “who had
done this, committed this crime against her.” Accordingly, Dumas’ statements to
Sims were testimonial.
Because Dumas’ statements to Sims were testimonial and Jones did
not have an opportunity to cross-examine Dumas regarding those statements, the
trial court’s admission of those statements violated the Confrontation Clause.
B. Harmless Error
Having determined that the trial court erred in admitting evidence
of Dumas’ statements to Donnellan, Potchatek, Strehle and Sims, we must now
consider whether that error was reversible error or harmless error. Beasley, 153
Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 178 (“Confrontation Clause
claims are * * * subject to harmless-error analysis.”), citing McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 192.
Crim.R. 52(A) addresses harmless error in the context of criminal
cases. It provides: “Any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” See also R.C. 2945.83(C) (“No motion for
a new trial shall be granted or verdict set aside, nor shall any judgment of conviction
be reversed in any court because of * * * [t]he admission or rejection of any evidence
offered against or for the accused unless it affirmatively appears on the record that
the accused was or may have been prejudiced thereby.”). Under the harmless error
standard of review, the state bears the burden of demonstrating that the error did
not affect the substantial rights of the defendant. State v. Graham, 164 Ohio St.3d
187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 55; State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Neither party addressed the issue of
harmless error in their appellate briefs.
In State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d
1153, the Ohio Supreme Court set forth a three-part analysis “to guide appellate
courts” in determining whether an error in the admission of evidence has affected
the substantial rights of a defendant, thereby requiring a new trial, or whether
admission of that evidence was harmless error:29
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. [Morris]
at ¶ 25, 27. Second, it must be determined whether the error was not
harmless beyond a reasonable doubt. Id. at ¶ 28. Lastly, once the
prejudicial evidence is excised, the remaining evidence is weighed to
determine whether it establishes the defendant’s guilt beyond a
reasonable doubt. Id. at ¶ 29, 33.
State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37; see also
State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, ¶ 63.
“[W]hile courts may determine prejudice in a number of ways and
use language that may differ, * * * both the nature of the error and the prejudice to
defendant (the measure of how the error affected the verdict) are important.”
Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, at ¶ 25, 33. As such,
when determining whether a new trial is required or error is harmless beyond a
reasonable doubt, “an appellate court must consider both the impact of the
offending evidence on the verdict and the strength of the remaining evidence.”
Morris at ¶ 33. Error in the admission of evidence is harmless beyond a reasonable
doubt when ‘“there is [no] reasonable possibility that the improperly admitted
29In Morris, the Court “dispensed with the distinction between constitutional and
nonconstitutional errors under Crim.R. 52(A).” Harris at ¶ 37, citing Morris at ¶ 22-24.
evidence contributed to the conviction.’” McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, 70 N.E.3d 508, at ¶ 192, quoting Schneble v. Florida, 405 U.S. 427, 432, 92
S.Ct. 1056, 31 L.Ed.2d 340 (1972); see also State v. Conway, 108 Ohio St.3d 214,
2006-Ohio-791, 842 N.E.2d 996, ¶ 78 (“Whether a Sixth Amendment error was
harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of
the remaining evidence. Instead, the question is whether there is a reasonable
possibility that the evidence complained of might have contributed to the
conviction.”).
Applying this analysis to the evidence in this case, we find that the
erroneous admission of Dumas’ statements to Donnellan, Potchatek, Strehle and
Sims was harmless error and did not affect Jones’ substantial rights.
“Errors can be harmless * * * if the evidence is cumulative of other
properly admitted evidence.” State v. Calhoun, 9th Dist. Summit No. 29604, 2021-
Ohio-1713, ¶ 15, citing State v. Arnold, 10th Dist. Franklin No. 07AP-789, 2010-
Ohio-5622, ¶ 8, citing Conway at ¶ 59; cf. State v. Wallace, 8th Dist. Cuyahoga No.
109847, 2021-Ohio-4612, ¶ 33 (“the erroneous admission of inadmissible hearsay
that is cumulative to properly admitted testimony constitutes harmless error”),
quoting Peffer v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 94356, 2011-
Ohio-450, ¶ 28; Merritt, 2016-Ohio-4693, 69 N.E.3d 102, at ¶ 11 (concluding that
where one officer’s testimony regarding the victim’s statements was admissible, any
error in the admission of another officer’s “duplicative testimony” would be
harmless error).
Following a thorough review of the record before us, considering
both the potential impact of the improperly admitted evidence on the verdict and
the strength of the remaining evidence after the improperly admitted evidence is
removed from consideration, we are compelled to find that the trial court’s
erroneous admission of this evidence did not contribute to Jones’ convictions, was
harmless beyond a reasonable doubt and did not affect Jones’ substantial rights.
Although the improperly admitted evidence of Dumas’ statements
to Donnellan, Potchatek, Strehle and Sims (including the body camera footage
capturing those statements) linked Jones to the crimes of which he was ultimately
convicted, that improperly admitted evidence was duplicative and cumulative of the
other, properly admitted evidence of Dumas’ statements to Campbell, the 911
operator and the EMS dispatcher.30 Excising the improperly admitted evidence, an
abundance of credible evidence remains that supports the jury’s guilty verdicts on
the offenses of which Jones was convicted beyond a reasonable doubt.
30 In considering whether the trial court’s admission of Dumas’ statements was
harmless error, we are mindful that Jones stipulated to the admissibility of Dumas’
medical records, which includes an “emergency department – visit note” authored by Dr.
Julia Coppi, recording a “history * * * provided by the Patient and EMS” that includes a
description of the incident. It is unclear from the record what information came from
EMS as opposed to Dumas, the source of the information provided by EMS and when the
information “provided by the Patient” was provided, i.e., whether it was provided during
Potchatek and Strehle’s interview of Dumas while she was being treated at the hospital.
Because it appears from the record that that stipulation was made only after the trial court
denied Jones’ motion in limine and admitted, over Jones’ objections, Potchatek’s
testimony regarding the statements Dumas had made at the hospital, we do not consider
Jones’ stipulation to the admissibility of the medical records as part of our harmless error
analysis.
The properly admitted evidence establishes that following the
incident, Dumas went directly from her home to Campbell’s home, where Dumas
told her neighbor and long-time acquaintance, Campbell, that she needed to get to
the hospital because “Kelly had thrown fire on her.” A few minutes later, Dumas
told the 911 operator that Kelly Jones, “[t]his guy I let stay in my house” “‘cuz he
didn’t have nowhere to stay,” “came in all looped out, high, and * * * went crazy on
me,” “throwed gasoline and something on me trying to burn my mother’s house
down” and “[s]et me on fire,” burning her face, arms and chest. Dumas told the EMS
dispatcher, “I’ve been set on fire and I’m burning up. * * * I’m at my neighbor’s right
now ‘cuz he was still in the house when I left out of there. * * * He set me on fire.”
The physical evidence officers found at the scene was, in significant part, consistent
with and supported Dumas’ version of events as described to Campbell, the 911
operator and the EMS dispatcher.
The statements Dumas made to Donnellan, Potchatek, Strehle and
Sims identifying Jones as her assailant and describing what occurred were simply a
retelling, using slightly different language, of what Dumas had already told
Campbell, the 911 operator and the EMS dispatcher. There is nothing in the record
to suggest that anything rendered the statements Dumas made further in time from
the incident (to Donnellan, Potchatek, Strehle and Sims) more credible than the
statements she made closer in time to the incident (to Campbell, the 911 operator
and the EMS dispatcher). As such, we cannot say that there is any “reasonable
possibility” that the improperly admitted evidence prejudicially contributed to
Jones’ convictions.
It should be noted, however, that we reluctantly reach this result.
Based on the current state of the law, we are compelled to find that evidence of
Dumas’ statements to Campbell, the 911 operator and the EMS dispatcher were
admissible. Further, based on the admissibility of that evidence and the record
before us, we are unable to find that the erroneous admission of the police officers’
testimony and body camera footage of Dumas’ statements to the officers is anything
but harmless error.
We recognize, however, that it was only through the out-of-court
statements of Dumas, who did not testify at trial, that the state was able to convict
Jones. Dumas’ unsworn, untested statements were the sole source of nearly every
fact needed to support Jones’ guilty verdicts. The record reflects that defense
counsel stated, “We have been briefed in chambers as to the reason that [Dumas]
would be unavailable for attendance at trial.” Unfortunately, the content of that in-
chambers conversation is not part of the record.
In this case, the defendant was convicted and sentenced to a lengthy
prison term (1) without any opportunity to confront and cross-examine the
declarant whose unsworn, out-of-court statements gave rise to his convictions and
(2) without any evidence in the record establishing that that declarant was unable
or otherwise unavailable to testify at trial. It is axiomatic that defendants have a
right, under both the United States and Ohio Constitutions, to confront the
witnesses against them. The blatant circumvention of this constitutional right by
the state of Ohio — which this court is repeatedly and frequently encountering — is
disconcerting.
The Cuyahoga County Prosecutor’s Office has made it a practice to
proceed with “victimless prosecutions.” See the state’s oral argument in State v.
Johnson, Appeal No. 110942.31 This practice is reprehensible. Although it may very
well be “easier to go without the victim in these cases,” see the state’s oral argument
in State v. Smith, Appeal No. 111274, this practice undermines “the basic objective
of the Confrontation Clause,” which is “to prevent the accused from being deprived
of the opportunity to cross-examine the declarant about statements taken for use at
trial.” Bryant, 562 U.S. at 358, 131 S.Ct. 1143, 179 L.Ed.2d 93.
Constrained by existing law from reaching a different result, we
overrule Jones’ first assignment of error.
C. Sufficiency of the Evidence
In his second assignment of error, Jones argues that the trial court
erred in denying his Crim.R. 29(A) motion for acquittal as to all charges.
A Crim.R. 29(A) motion for acquittal tests the sufficiency of the
evidence. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. Crim.R.
29(A) mandates that the trial court issue a judgment of acquittal where the state’s
evidence is insufficient to sustain a conviction for an offense. Crim.R. 29(A) (the
31 Pursuant to App.R. 21(J), recordings of these oral arguments are available for
review upon request.
trial court “shall order the entry of a judgment of acquittal of one or more offenses
* * * if the evidence is insufficient to sustain a conviction of such offense or
offenses”); State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶ 21.
Accordingly, we apply the same standard of review to a trial court’s denial of a
defendant’s motion for acquittal as we use when reviewing sufficiency of the
evidence. State v. Nicholson, 8th Dist. Cuyahoga No. 110595, 2022-Ohio-2037,
¶ 141, citing Taylor ¶ 21-23 (“Crim.R. 29(A) and sufficiency of evidence review
require the same analysis.”).
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state has met its burden of production at
trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Whether the
evidence is legally sufficient to support a verdict is a question of law. Thompkins at
386.
An appellate court’s function when reviewing the sufficiency of
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince a reasonable
juror of the defendant's guilt beyond a reasonable doubt. Id.; see also State v.
Bankston, 10th Dist. Franklin No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that “in a
sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state’s
witnesses testified truthfully and determines if that testimony satisfies each element
of the crime”). The appellate court must determine ‘“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.’”
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
Jones contends that all his convictions should be vacated because (1)
“[t]here simply is not the requisite evidence that Appellant committed these crimes”
and (2) Jones was not shown to have had a motive for committing any crime against
Dumas. He further contends that there was insufficient evidence to convict him of
aggravated arson in violation of R.C. 2909.02(A)(1) because there was no evidence
of “fire” or “explosion.”32
Jones was convicted of four offenses: (1) aggravated arson in
violation of R.C. 2909.02(A)(1) (Count 1); felonious assault in violation of R.C.
2903.11(A)(1) (Count 3); arson in violation of R.C. 2909.03(A)(1) (Count 5) and
domestic violence in violation of R.C. 2919.25(A) (Count 6).
R.C. 2909.02(A)(1), aggravated arson, states: “No person, by means
of fire or explosion, shall knowingly * * * [c]reate a substantial risk of serious
physical harm to any person other than the offender.” R.C. 2903.11(A)(1), felonious
32 Although Jones’ conviction for arson in violation R.C. 2903.03(A)(1) (Count 5)
also has “by means of fire or explosion” as an element of the offense, in his appellate brief,
Jones only specifically challenges his conviction for aggravated arson (Count 1) and not
his conviction for arson (Count 5) on that basis.
assault, states, in relevant part: “No person shall knowingly * * * [c]ause serious
physical harm to another.” R.C. 2909.03(A)(1), arson, states: “No person, by means
of fire or explosion, shall knowingly * * * [c]ause, or create a substantial risk of,
physical harm to any property of another without the other person’s consent.”33 R.C.
2919.25(A), domestic violence, states: “No person shall knowingly cause or attempt
to cause physical harm to a family or household member.” A person acts knowingly
“when the person is aware that the person’s conduct will probably cause a certain
result or will probably be of a certain nature.” R.C. 2901.22(B).
Following a thorough review of the record, viewing the evidence in
the light most favorable to the state, we conclude that the state presented sufficient
evidence for a reasonable jury to find Jones guilty of each of these offenses beyond
a reasonable doubt and that the trial court, therefore, did not err in denying his
Crim.R. 29(A) motion.
A conviction may rest solely on the testimony of a single witness,
including the victim, if believed. See, e.g., Nicholson, 2022-Ohio-2037, at ¶ 148;
State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 38;
State v. Dudley, 9th Dist. Summit No. 28364, 2017-Ohio-7044, ¶ 10.
Proof of motive or reason for causing harm is not required to support
a conviction. See, e.g., Nicholson at ¶ 183; State v. Kemp, 8th Dist. Cuyahoga No.
33 For a violation of R.C. 2903.03(A)(1) to constitute a fourth-degree felony, as
charged in this case, “the value of the property or the amount of the physical harm
involved” must be “one thousand dollars or more.” See R.C. 2903.03(D)(2)(b). Because
Jones does not specifically challenge the sufficiency of the evidence establishing this
element, we do not further address it here.
97913, 2013-Ohio-167, ¶ 47 (state’s failure to establish a clear motive was not a
sufficient basis upon which to reverse defendant’s convictions; “‘proof of motive
does not establish guilt, nor does want of proof thereof establish innocence; and,
where the guilt of the accused is shown beyond a reasonable doubt, it is immaterial
what the motive may have been for the crime, or whether any motive is shown’”),
quoting State v. Allen, 8th Dist. Cuyahoga No. 85530, 2005-Ohio-4813, ¶ 15.
Here, Dumas’ assailant was well known to her. The state presented
evidence that Dumas told Campbell that “Kelly” had “thrown fire” on her. The state
presented evidence that Dumas told the 911 operator that “the guy I let stay in my
house,” “Kelly Jones,” “is going crazy and throwed gasoline and something on me
trying to burn my mother’s house down” and “[s]et me on fire” and that she told the
EMS dispatcher, “I’ve been set on fire and * * * I’m at my neighbor’s right now ‘cuz
he was still in the house when I left out of there. * * * He set me on fire.”
Dr. Brandt testified that Dumas had sustained life-threatening
second-degree and third-degree burns to 16.5 percent of her body. Further, the
police officers and fire investigator testified that they had observed signs of a recent
fire in the front bedroom, including observing burnt paper and a burnt lampshade
and smelling a strong chemical odor, burnt paper and burnt plastic, when they
inspected Dumas’ home shortly after the incident. Jones does not dispute that the
fire created a substantial risk of serious physical harm to Dumas, that Dumas
sustained serious physical harm as a result of the incident or that he was a member
of Dumas’ household at the time the incident occurred.
The evidence presented at trial was sufficient to establish each of the
elements of each of the offenses of which Jones was convicted, including the “fire or
explosion” element of R.C. 2902.02(A)(1). Further, although the state was not
required to prove motive or a reason for Jones’ conduct to sustain his convictions,
Dumas told the 911 operator that Jones “came in all looped out, high” on drugs and
“went crazy on me,” which could reasonably explain why he attacked Dumas.
Jones’ second assignment of error is overruled.
D. Manifest Weight of the Evidence
In his third assignment of error, Jones asserts that all his convictions
should be vacated because they are against the manifest weight of the evidence.
Specifically, Jones argues that his convictions are against the manifest weight of the
evidence because (1) “[t]here is no worthy or independent corroborative evidence
that Appellant caused [Dumas’] injuries,” (2) Jones “never acknowledged or
admitted to causing any injury to [Dumas]” and told the police that Dumas had
attacked him, (3) Dumas “could have and probably caused those injuries to herself,
accidentally or otherwise,” (4) the responding officers had discussed whether the
fire was accidental and (5) based on Potchatek’s statements that Dumas was “crazy”
and had “serious dementia.”
In contrast to a challenge based on sufficiency of the evidence, a
manifest weight challenge attacks the credibility of the evidence presented and
questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. ‘“[W]eight of the evidence involves the
inclination of the greater amount of credible evidence.’” State v. Harris, 8th Dist.
Cuyahoga No. 109060, 2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541. When considering an appellant’s claim that a conviction is
against the manifest weight of the evidence, the appellate court functions as a
“thirteenth juror” and may disagree “with the factfinder’s resolution of * * *
conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42,
102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court examines the entire
record, weighs the evidence and all reasonable inferences that may be drawn
therefrom, considers the witnesses’ credibility and determines whether, in resolving
conflicts in the evidence, the trier of fact ‘“clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the
“‘exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
As stated above, a conviction may rest solely on the testimony of a
single witness, if believed, and there is no requirement that a witness’ testimony be
corroborated to be believed. See, e.g., Nicholson, 2022-Ohio-2037, at ¶ 180; Flores-
Santiago, 2020-Ohio-1274, at ¶ 38; State v. Black, 2019-Ohio-4977, 149 N.E.3d
1132, ¶ 43 (8th Dist.); State v. Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 84 (4th
Dist.). Likewise, a conviction is not against the manifest weight of the evidence
“solely because the jury heard inconsistent or contradictory testimony.” State v.
Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 72, citing State v. Wade,
8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38; State v. Nitsche, 2016-Ohio-
3170, 66 N.E.3d 135, ¶ 45 (8th Dist.) (“A defendant is not entitled to reversal on
manifest weight grounds merely because certain aspects of a witness’s testimony are
not credible or were inconsistent or contradictory.”).
Although Campbell and Potchatek testified that Dumas had
“dementia” or some type of mental deficiency or cognitive difficulty prior to the
incident, no medical evidence was presented regarding Dumas’ mental state at the
time of the incident, there was no evidence that Dumas had been diagnosed with any
medical or mental condition prior to the incident and there was no evidence that any
mental deficiency or cognitive difficulty Dumas may have been experiencing had
impacted her ability to accurately perceive, recall or relate what had occurred or at
or around the time of the incident. Campbell testified that Dumas was “calm” and
“well put together” when she spoke with Dumas shortly after the incident. Although
Dumas was certainly in distress when speaking with the 911 operator and EMS
dispatcher, it is clear from the recording of the 911 call that Dumas had no difficulty
in communicating with the 911 operator and the EMS dispatcher and answered their
questions in a reasonable, clear and concise manner. Donnellan testified that he
saw no signs of any “mental issues” when he spoke with Dumas and, despite his prior
concerns regarding Dumas’ mental condition, Potchatek testified that Dumas was
not “manifesting” any “psych issues” when he spoke with her following the incident.
There is nothing in the record that would preclude the jury from reasonably
believing Dumas’ statements to Campbell, the 911 operator and the EMS operator
regarding what had occurred, had they chosen to do so.
As a general matter, a jury is free to believe all, some or none of the
testimony of each witness testifying at trial. State v. Jones, 8th Dist. Cuyahoga No.
108371, 2020-Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649,
2019-Ohio-528, ¶ 100. The jury heard evidence of (1) Dumas’ statements to
Campbell, the 911 operator and the EMS dispatcher that Jones had thrown fire on
her, causing her burn injuries, and (2) Jones’ statements to police that Dumas had
attacked him. It was free to determine the credibility of those statements. Further,
although the police officers had initially discussed whether the fire may have been
“accidental,” each officer testified that he ultimately concluded, after further
investigating the incident, e.g., after hearing Dumas’ description of the incident,
seeing her injuries, examining the scene and/or interacting Jones, that Dumas’
injuries resulted from Jones’ intentional conduct.
Jones’ convictions were not against the manifest weight of the
evidence merely because the trial court believed Dumas and the testimony of the
state’s witnesses regarding what had occurred over Jones’ version of events, where,
as here, the jury could reasonably make that choice. See, e.g., State v. Nash, 1st Dist.
Hamilton Nos. C-210435 and C-210436, 2022-Ohio-1516, ¶ 13 (“[A] conviction is
not against the weight of the evidence merely because the [fact finder] did not
believe the defense testimony.”); State v. Fry, 9th Dist. Medina No. 16CA0057-M,
2017-Ohio-9077, ¶ 13 (“We will not overturn a conviction as being against the
manifest weight of the evidence simply because the trier of fact chose to believe the
State’s version of events over another version.”); State v. Chatman, 10th Dist.
Franklin No. 08AP-803, 2009-Ohio-2504, ¶ 34 (“[A] conviction is not against the
manifest weight of the evidence simply because the trier of fact chose to believe the
prosecution’s witnesses and to not believe appellant.”).
Following a thorough review of the record, weighing the strength
and credibility of the evidence presented and the reasonable inferences to be drawn
therefrom, we cannot say that this is one of those ‘“exceptional cases’” in which the
trier of fact clearly lost its way and created a manifest miscarriage of justice that the
defendant’s convictions must be reversed. Thompkins at 387, quoting Martin at
175. We overrule Jones’ third assignment of error.
E. Allied Offenses of Similar Import
In his fourth assignment of error, Jones argues that the aggravated
arson and felonious assault offenses34 of which he was convicted are allied offenses
of similar import and should have been merged for sentencing. R.C. 2941.25, Ohio’s
allied-offenses statute, states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
34 Jones has not claimed on appeal that his arson or domestic violence convictions
should have merged for sentencing with any other offenses. Accordingly, we do not
address those offenses here.
animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of them.
In determining whether offenses are subject to merger for
sentencing under R.C. 2941.25, courts evaluate three separate factors — the import,
the conduct and the animus. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, paragraphs one and three of the syllabus. Offenses do not merge, and a
defendant may be convicted of and sentenced for multiple offenses if any one of the
following is true: (1) the offenses are dissimilar in import or significance, (2) the
offenses were committed separately or (3) the offenses were committed with
separate animus or motivation. Id. at paragraph three of the syllabus, ¶ 25, 31. “The
defendant bears the burden of establishing his entitlement to the protection
provided by R.C. 2941.25 against multiple punishments for a single criminal act.”
State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18;
see also State v. Davids, 8th Dist. Cuyahoga No. 110890, 2022-Ohio-2272, ¶ 43;
State v. Burey, 8th Dist. Cuyahoga No. 109629, 2021-Ohio-943, ¶ 17.
Offenses are dissimilar in import or significance within the meaning
of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Ruff at ¶ 23. Thus, “a defendant’s conduct that constitutes two or more
offenses against a single victim can support multiple convictions if the harm that
results from each offense is separate and identifiable from the harm of the other
offense.” Id. at ¶ 26. “The evidence at trial or during a plea or sentencing hearing
will reveal whether the offenses have similar import.” Id.
Offenses are committed separately within the meaning of R.C.
2941.25(B) if ‘“one offense was complete before the other offense occurred, * * *
notwithstanding their proximity in time and that one [offense] was committed in
order to commit the other.’” State v. Woodard, 2d Dist. Montgomery No. 29110,
2022-Ohio-3081, ¶ 38, quoting State v. Turner, 2d Dist. Montgomery No. 24421,
2011-Ohio-6714, ¶ 24. Thus, “‘when one offense is completed prior to the
completion of another offense during the defendant’s course of conduct, those
offenses are separate acts.’” Woodard at ¶ 38, quoting State v. Mooty, 2014-Ohio-
733, 9 N.E.3d 443, ¶ 49 (2d Dist.).
For purposes of R.C. 2941.25(B), animus has been defined as
“‘“purpose or more properly, immediate motive.’”” State v. Priest, 8th Dist.
Cuyahoga No. 106947, 2018-Ohio-5355, ¶ 12, quoting State v. Bailey, 8th Dist.
Cuyahoga No. 100993, 2014-Ohio-4684, ¶ 34, quoting State v. Logan, 60 Ohio St.2d
126, 131, 397 N.E.2d 1345 (1979). ‘“If the defendant acted with the same purpose,
intent, or motive in both instances, the animus is identical for both offenses.’” State
v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 12, quoting State
v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13. “Animus is
often difficult to prove directly, but must be inferred from the surrounding
circumstances.” Lane at ¶ 12, citing State v. Lung, 12th Dist. Brown No. CA2012-
03-004, 2012-Ohio-5352, ¶ 12. We review de novo whether two offenses are allied
offenses of similar import. Burey, 2021-Ohio-943, at ¶ 17, citing State v. Williams,
134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
As stated above, aggravated arson under R.C. 2909.02(A)(1) occurs
where a person “by means of fire or explosion” “knowingly * * * [c]reate[s] a
substantial risk of serious physical harm to any person other than the offender.”
Felonious assault under R.C. 2903.11(A)(1) occurs where a person “knowingly * * *
[c]ause[s] serious physical harm to another.”
At the sentencing hearing, the trial court rejected Jones’ arguments
that the aggravated arson and felonious assault claims were allied offenses of similar
import based on a belief that the setting of the fire that led to the burning of the
lampshade and paper and the fire that led to Dumas’ injuries were “separate and
distinct act[s]” that occurred at “separate and distinct time[s]”:
THE COURT: He was convicted by this jury of aggravated arson. There
was a suggestion that he lit portions of the house on fire, too. * * *
Whether it was before or after is somewhat irrelevant. There was also
testimony that he attempted to damage the automobile * * * and light
the car on fire and that there was a candle that was found on the hood
of the automobile, so I do not believe that these separate acts merge
with the felonious assault that you’re mentioning.
The felonious assault on the victim where he sprayed her with a
flammable liquid and then lit her on fire I believe is a separate and
distinct act that occurred at a separate and distinct time. * * * I have
reviewed the facts and circumstances contained in this case and I
wholeheartedly concur with the finding of the jury that there is a
separate count for aggravated arson, a felony of the first degree, that he
has been convicted of.
***
I believe that there are separate and distinct acts for this reason: I
believe the testimony from the police officers, it was when they talked
to the victim, Ernestine Dumas, and she indicated she was watching TV
in her home on the day in question when Jones came over “high on
everything,” * * * and he began to spray a clear liquid from a bottle and
then light the liquid on fire.
Jones lit — and this is the testimony that I recall — the lamp on fire.
That is an act of arson, a separate and distinct act of arson.
Dumas tried to put the fire out and in part she was burned on her arms
and hands. It was thereafter that Jones then sprayed the victim with
an unknown flammable liquid and lit her afire.
Those are the facts and circumstances that this Court recalls. I believe
that is the testimony in this case. I believe that establishes a clear,
separate animus and, therefore, there is no merger of the counts
mentioned.
As detailed above, however, there was no testimony at trial that
Dumas was first “burned on her arms and hands” when she “tried to put the out fire
out” after Jones “lit * * * the lamp on fire” and that Jones “then later sprayed
[Dumas] within an unknown flammable liquid and lit her on fire” “at a separate and
distinct time.” The evidence presented at trial does not support the trial court’s
version of what occurred in deciding that the aggravated arson and felonious assault
offenses were not allied offenses of similar import.
At the sentencing hearing, the state was initially willing to concede
that the aggravated arson and felonious assault offenses merged for sentencing.35
35 At the sentencing hearing, the assistant prosecuting attorney stated:
So with respect to the aggravated arson and the felonious assault, I
don’t believe the [s]tate can say in a way that will stand up to appellate review
that they had a separate animus. Typically[,] aggravated arson, for example,
if you set fire to the house, certainly that would be separate animus to a
However, the state ultimately deferred to the trial court’s determination that the
aggravated arson and the felonious assault offenses were not allied offenses of
similar import. On appeal, the state argues that the aggravated arson and felonious
assault offenses do not merge because “the force” Jones used to commit aggravated
arson was “far in excess” of that required to commit the offense and Jones, therefore,
had a separate animus36 to knowingly cause Dumas serious physical harm after he
completed the aggravated arson offense by “means of fire” knowingly created a
substantial risk of serious physical harm to Dumas. The state explains its argument
as follows:
Aggravated arson is a completed offense when a person doused in a
flammable liquid is merely exposed to an open flame. Taking the extra
step to ignite another person is far in excess of the force necessary to
effect an aggravated arson and thus shows a separate animus for the
felonious assault. Offenses with a separate animus may be sentenced
separately. * * * [O]nce Ms. Dumas had been sprayed by the flammable
liquid, the aggravated arson was complete as soon as she was in the
presence of an open flame. * * * The act of bringing the flame close
enough to Ms. Dumas to ignite her is far in excess of the force necessary
to effectuate an aggravated arson. There was a separate animus to
knowingly cause Ms. Dumas serious physical harm, not merely an
intent to place her at substantial risk of it. The felonious assault was
the act of setting fire to the flammable liquid Appellant sprayed on to
Ms. Dumas’s body, not merely endangering her by having an open
flame in her presence. Because igniting Ms. Dumas represents a
separate animus than merely placing her at risk of serious physical
felonious assault. But in this case, like, he used the fire to cause the serious
physical harm.
While there are not a lot of cases on the issue, the ones we do have
would indicate that I don’t think that we can argue the separate animus there,
so we would, I guess, submit to the Court that they might merge.
36 The state does not dispute that the offenses involved the same conduct and
import.
harm due to her presence near an open flame, aggravated arson and
felonious assault do not merge.
In support of its argument, the state cites State v. Albert, 10th Dist.
Franklin No. 14AP-30, 2015-Ohio-249. That case, however, is readily
distinguishable from this case. In Albert, the defendant, Albert, and another male,
Taylor, began beating the victim after he refused to answer questions regarding a
shooting that had occurred two days earlier. Id. at ¶ 2-3. Albert said that he knew
how to get the victim to talk, then left the room and returned with a gasoline can.
Id. at ¶ 3. Albert poured gasoline on the victim, and Taylor lit a piece of paper on
fire to intimidate the victim to answer their questions. Id. When the lit piece of
paper started burning Taylor’s hand, Taylor either tossed or accidentally dropped
the lit paper into the victim’s lap and the victim became engulfed in flames. Id. at
¶ 3 and fn. 2. The victim sustained burns over 95 percent of his body and died from
the massive burns and soot inhalation into his lungs. Id. Albert was convicted of
aggravated arson, felony murder and kidnapping as a result of the incident. Id. at
¶ 6.
On appeal, Albert argued that his convictions should have been
merged for sentencing. The Tenth District rejected Albert’s claim as it related to the
merger of the kidnapping offense and either aggravated arson or murder,
concluding that separate conduct was required to commit each of the offenses and
that the two men had restrained the victim’s liberty to terrorize him by initially
standing over him and beating him. Id. at ¶ 24.
With respect to the murder and aggravated arson offenses, the court
found that offenses were committed with the same conduct because the victim had
died as the result of being set on fire. Id. at ¶ 25. However, the court held that
Albert’s intent to kill victim (supporting the murder conviction) was separate from
his intent to cause the victim serious harm by means of fire (supporting the
aggravated arson conviction) “because the act of pouring gasoline on [the victim]
and then lighting him on fire was far in excess of the force needed to commit
aggravated arson * * * and, given the circumstances, indicates that appellant
participated in an act with a separate animus to kill [the victim].” Id. at ¶ 28.
Accordingly, the court held that the trial court did not err when it did not merge
these offenses for sentencing. Id.
“At its heart, the allied-offense analysis is dependent upon the facts
of a case because R.C. 2941.25 focuses on the defendant’s conduct” and “an offense
may be committed in a variety of ways.” Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892, at ¶ 26, 30. “[T]his analysis may be sometimes difficult to perform
and may result in varying results for the same set of offenses in different cases. But
different results are permissible, given that the statute instructs courts to examine a
defendant’s conduct — an inherently subjective determination.” Ruff at ¶ 32,
quoting State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
¶ 52 (plurality opinion per Brown, C.J.).
The “circumstances” of this case are different from those in Albert.
Here there is nothing — given the limited facts in the record regarding what actually
occurred — to reasonably support the state’s theory that Jones first sprayed Dumas
with flammable liquid “in the presence of an open flame” with the intent “by means
of fire or explosion [to] knowingly create a substantial risk of serious physical harm”
and that he then “[brought] the flame close enough to Ms. Dumas to ignite her” with
the separate intent to “knowingly cause [her] serious physical harm.” Based on the
evidence presented at trial, it is unknown what served as the ignition source in this
case or precisely how it came to be that Jones set Dumas on fire. None of the police
officers nor the fire investigator could identify the ignition source. Dumas stated
only that Jones had “thrown fire on her” and had “set [her] on fire.” Accordingly,
under the facts and circumstances here, we find that the aggravated arson and
felonious assault offenses were allied offenses involving the same conduct, import
and animus and should have been merged for sentencing.
We, therefore, vacate Jones’ sentences on Counts 1 and 3 and
remand for a new sentencing hearing on those counts. On remand, the trial court
shall merge these offenses for sentencing, the state shall elect the offense on which
it wishes Jones to be sentenced and the trial court shall impose a sentence that is
appropriate for that offense.
Jones’ fourth assignment of error is sustained.
F. Imposition of Consecutive Sentences
In his fifth assignment of error, Jones argues that his consecutive
sentences should be vacated and modified to concurrent sentences because the trial
court (1) did not make all the requisite findings at the sentencing hearing to support
the imposition of consecutive sentences under R.C. 2929.14(C)(4) and (2) did not
set forth such findings in its sentencing journal entry.37
To impose consecutive sentences on felony offenses, a trial court
must find that (1) consecutive sentences are necessary to protect the public from
future crime or to punish the offender, (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public and (3) at least one of the following applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4). The trial court must make each finding required under R.C.
2929.14(C)(4) at the sentencing hearing and then incorporate those findings into its
37In the section of his appellate brief addressing his fifth assignment of error,
Jones also asserts — without discussion or citation to supporting legal authority — “[p]lus,
any misdemeanor in this case has to be served concurrently.” The only misdemeanor
conviction in this case was Jones’ conviction for domestic violence (Count 6). Jones has
not assigned this as error. Accordingly, we disregard it. App.R. 12(A)(1)(b) (“On an
undismissed appeal from a trial court, a court of appeals shall * * * [d]etermine the appeal
on its merits on the assignments of error set forth in the briefs under App.R. 16, the record
on appeal under App.R. 9, and, unless waived, the oral argument under App.R. 21.”); see
also App.R. 16(A).
sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, syllabus.
Based on our resolution of Jones’ fourth assignment of error, this
assignment of error is moot. As this court explained in State v. Nunez, 8th Dist.
Cuyahoga No. 102946, 2016-Ohio-812, ¶ 12:
[W]here a matter is remanded for the merger of allied offenses, the
consecutive nature of the sentence, if so imposed, is no longer intact
because it is only after the judge has imposed a separate prison term
for each offense that the judge may consider whether the offender shall
serve those terms concurrently or consecutively. [State v. Huber, 8th
Dist. Cuyahoga No. 98206, 2012-Ohio-6139, ¶ 24], citing State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9.
Thus, at a resentencing hearing in such a case, the trial court must first
sentence the defendant on the merged offense or offenses before it may
consider whether the prison terms should be served consecutively or
concurrently. Huber at ¶ 24.
See also State v. Gwynne, Slip Opinion No. 2022-Ohio-4607, ¶ 12, 14-15 (“[W]hen
a sentencing court makes the statutory findings under R.C. 2929.14(C)(4) for
consecutive sentences, it must consider the number of sentences that it will impose
consecutively along with the defendant’s aggregate sentence that will result.”).
Accordingly, on remand, the trial court will again need to consider
whether Jones’ sentences should be served concurrently or consecutively and, if it
determines that Jones’ sentences should be served consecutively, it must make the
findings required by R.C. 2929.14(C)(4) and set forth those findings in its sentencing
journal entry.
G. Sentencing under the Reagan Tokes Law
In his sixth assignment of error, Jones contends that the trial court
erred in sentencing him to an indefinite sentence on the aggravated arson count
(Count 1) under the Reagan Tokes Law. Under the Reagan Tokes Law, qualifying
first-and second-degree felonies committed on or after March 22, 2019 are subject
to the imposition of indefinite sentences. Jones argues that the Reagan Tokes Law
is unconstitutional because it violates his constitutional right to a trial by a jury, the
separation-of-powers doctrine and his right to due process. Based on our resolution
of Jones’ fourth assignment of error, his sixth assignment of error is moot.
H. Reopening Case
In his seventh and final assignment of error, Jones asserts that the
trial court erred in allowing the state to reopen its case to present additional
evidence relating to the repeat violent specifications after rendering its verdict on
matters not tried to the jury.
As stated above, in this case, Jones elected to have the repeat violent
offender specifications (along with the notice of prior conviction specifications) in
Counts 1 and 3 tried to the bench. The remaining charges were tried to jury. After
the jury’s verdicts, the trial court found Jones guilty of the notice of prior conviction
and repeat violent offender specifications. On the date scheduled for the sentencing
hearing, the trial court withdrew its prior verdicts on the notice of prior conviction
and repeat violent offender specifications, and, over Jones’ objection, allowed the
state to present additional witness testimony and other evidence related to those
specifications.
As an initial matter, we note that Jones cites no legal authority and
makes no argument in support of this assignment of error. He simply “submits” that
the trial court’s actions in allowing the state to reopen its case “was error, as the trial
was already completed and there has to be some finality.”
An appellate court is not obliged to construct or develop arguments
to support an assignment of error. See, e.g., State v. Jacinto, 2020-Ohio-3722, 155
N.E.3d 1056, ¶ 56 (8th Dist.); see also State v. Collins, 8th Dist. Cuyahoga No.
89668, 2008-Ohio-2363, ¶ 91 (‘“[I]t is not the duty of this Court to develop an
argument in support of an assignment of error if one exists.’”), quoting State v.
Franklin, 9th Dist. Summit No. 22771, 2006-Ohio-4569, ¶ 19. ‘“An appellate court
may disregard an assignment of error pursuant to App.R. 12(A)(2) if an appellant
fails to cite to any legal authority in support of an argument as required by App.R.
16(A)(7).”’ State v. Fitz, 8th Dist. Cuyahoga No. 109270, 2021-Ohio-1497, ¶ 8,
quoting In re N.P., 8th Dist. Cuyahoga Nos. 97846, 97847, 97848, 97849, 97850,
97851, 97852, 97853, 97854 and 97855, 2012-Ohio-4298, ¶ 43; see also App.R.
16(A)(7) (“The appellant shall include in its brief * * * [a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies.”). For this
reason alone, we could overrule this assignment of error.
Further, we note that this court recently considered a similar issue
in State v. Heard, 8th Dist. Cuyahoga No. 110722, 2022-Ohio-2266. In that case,
the defendant elected to have a charge of having weapons while under disability, a
repeat violent offender specification, a notice of prior conviction specification and
firearm specifications tried to the bench. Id. at ¶ 5. A jury trial was held on the
remaining counts. Id. Immediately after the trial court announced the jury’s
verdict, the trial court stated that it had found the defendant guilty of the charges
and specifications that were to be tried to the bench. Id. at ¶ 18, 47. Nine days later,
the trial court indicated that, at the time it had announced its verdicts on the having
weapons while under disability charges, repeat violent offender specification and
firearm specifications, it had been “laboring under the misimpression that the
parties had stipulated to those charges.” Id. at ¶ 19, 48. Over the defendant’s
objections, the trial court reopened the case and allowed the state to additional
evidence. Id. at ¶ 49. Following the presentation of that evidence, the trial court,
once again, found the defendant guilty of the having weapons while under disability
charges, repeat violent offender specification and firearm specifications. Id.
On appeal to this court, the defendant argued that by reopening the
case, the trial court had violated his constitutional rights against double jeopardy.
Id. at ¶ 50. This court rejected the defendant’s argument, reasoning as follows:
The decision whether to reopen a case for the presentation of additional
evidence is within the discretion of the trial court and will not be
reversed on appeal absent an abuse of that discretion. State v. Watson,
8th Dist. Cuyahoga No. 70344, 1997 Ohio App. LEXIS 1110 (Mar. 20,
1997), ¶ 10; Columbus v. Grant, 1 Ohio App.3d 96, 97, 439 N.E.2d 907(10th Dist.1981).
***
[T]he prohibition against * * * double jeopardy * * * “protects against
three abuses”: (1) ‘“a second prosecution for the same offense after
acquittal,’” (2) “‘a second prosecution for the same offense after
conviction’” and (3) “‘multiple punishments for the same offense.’”
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10,
quoting N. Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23
L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith,
490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).
Here, we find none of these delineated “abuses” is implicated in this
case. [The defendant] had not been acquitted, was not being
prosecuted a second time for the same offenses, and the trial court had
not meted out multiple punishments. The trial court had simply
labored under the misimpression that there was a stipulation and
rectified the matter by reopening the case to reconcile the record.
Importantly, [the defendant] has not demonstrated any prejudice. As
such, we find no abuse of discretion in the trial court’s decision.
Id. at ¶ 51-53.
Accordingly, we overrule Jones’ seventh assignment of error.
Judgment affirmed in part; reversed in part; individual sentences
on Counts 1 and 3 vacated and consecutive sentences vacated. Case is remanded for
a resentencing hearing at which the trial court shall merge the offenses in Counts 1
and 3 for sentencing, the state shall elect the offense on which it wishes Jones to be
sentenced and the trial shall impose a sentence that is appropriate for that offense.
On remand, the trial court shall also consider whether Jones’ sentences should be
served concurrently or consecutively and, if it determines that Jones’ sentences
should be served consecutively, it shall make the findings required by R.C.
2929.14(C)(4) and incorporate those findings into its sentencing journal entry.
It is ordered that the appellant recover from appellee the costs herein taxed.
The court finds that 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
LISA B. FORBES, J., and
EMANUELLA D. GROVES, J., CONCUR