AUG 3 Ct 26V CLERK OF COURT SUPREME CJURT OF OHIO IN THE SUPREME COURT OF OHIO. State of Ohio, Appellee,

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1 IN THE SUPREME COURT OF OHIO State of Ohio, Appellee, V. Scott Stage, Appellant. On Appeal from the Cuyahoga County Court of Appeals, Ninth Appellate District Court of Appeals Case No. 11 CA 77-M APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION ED AUG 3 Ct 26V CLERK OF COURT SUPREME CJURT OF OHIO COUNSEL FOR APPELLEE: COUNSEL FOR APPELLANT: DEAN HOLMAN, ESQ. DAVID L. DOUGHTEN, ESQ. Summit County Prosecutor Regis. No Public Square 4403 St. Clair Avenue Medina, Ohio Cleveland, Ohio (216)

2 TABLE OF CONTENTS PAGES EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF THE CASE AND FACTS ARGUMENT Proposition of Law I: A fight does not result in serious physical injury pursuant to R.C (A)(1) where the victim suffers a laceration requiring stitches where there is no long term mental or physical suffering as result of that injury Proposition of Law II: A recording of a 911 call is does not constitute an excited utterance pursuant to Evidence Rule 803(2) were the caller has had adequate time to reflect upon the stimulating incident and he statement is based upon his reasoning rather that a product of that incident Proposition of Law III: Where the victims testimony is inherently inconsistent with not only his prior statements, but also his actual testimony, and is not adequately corroborated by other witness testimony, a resultant guilty verdict is against that weight of the evidence CONCLUSION CERTIFICATE OF SERVICE APPENDIX...16 Opinion, Ninth District Court of Appeals A-1 ii

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION The appellant Scott Stage was convicted of felonious assault for causing serious physical harm pursuant to R.C (A)(5)(e). This requires that the victim of the assault suffer a serious disfigurement or "any degree of prolonged or protractible pain." The victim here suffered a laceration requiring eleven stitches. What is missing here is evidence of serious disfigurement or the protraction of the injury. No medical personnel testified as to this element of the offense. That an injury occurred is not disputed here. Whether it is a serious physical harm as required by the statute is being disputed. The appellate courts of this state have held that when a victim's injuries "are serious enough to cause him or her to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by R.C (A)(5)." State v. Smith, Cuyahoga App. No , 2008 Ohio 5985, at P25. For instance, a one centimeter cut above the right eyebrow constitutes serious physical harm. See State v. Edwards (1992), 83 Ohio App. 3d 357, 614 N.E.2d 1123; The cases providing the element of serious physical harm by presuming the intractable or prolonged suffering from the injury are creating an unconstitutional mandatory presumption. Sandstrom v. Montana, 442 U.S. 510, 524 (1979) A presumption is unconstitutional if it "undermines the factfinder's responsibility... to find the elements of a crime beyond a reasonable doubt." County Court v. Allen, 442 U.S. 140, 156 (1979). See also Francis v. Franklin, 471 U.S. 307, 317 (1985). 1

4 Therefore, it is requested that this Court accept jurisdiction of this case to properly defined the terms defining "seriously physical injury" to ensure consistency amongst the judicial districts. STATEMENT OF THE CASE AND FACTS On November 23, 2011, a Medina County grand jury indicted the defendant-appellant Scott Stage (hereinafter appellant) for one count of Felonious Assalut in violation of R.C (A)(1). The count included a Repeat Violent Offender Specification in violation of R.C and a forfeiture specification pursuant to R.C and (A)(1). The appellant Stage pleaded not guilty to all counts at his arraignment on January 14, A jury trial began on March 14, The court granted a defense motion to bifurcate the specifications. On March 22, 2011, the jury found Stage guilty of the charge. The court found Stage guilty of the RVO specification but dismissed the forfeiture specification. On June 8, 2011, the trial court sentenced Stage to serve a term of six years in an Ohio penal institution. Stage appealed his case to the Ninth District Court of Appeals. The Ninth District affirmed his convictions on July 23, State v. Staee, 2012 Ohio 3300, 2012 Ohio App. Lexis Factual Back round This case arose from an incident outside of a Rockne's restaurant in Medina on September 3, Steve Keresztesi, Jr., injured his head after or because of a confrontation with the defendant-appellant Scott Stage. Kerseztesi, a member of the Coffin Cheaters motorcycle club, testified that Stage punched him as a warning against wearing a biker patch 2

5 without permission to do so from the Hell's Angels Motorcycle Club. Keresztesi believed that Stage was a member of the Hell's Angels. Keresztesi had called a number he believed to be an Angel phone number. They agreed to meet at the restaurant. The discussion began friendly but ended surprisingly when Stage "sucker punched" Keresztesi without provocation. He suffered a laceration to his head which resulted in the necessity of having 11 stitches in his head to close the wound. The defense argued that the Motor Cycle clubs were irrelevant to the incident. Keresztesi exaggerated or misled the jury about the background of the events leading up to the injury. His version of the events could not be believed. Regardless, the resultant injuries did not constitute a serious physical injury. At best, Stage could be convicted only of simple assault. State's Case Steve Keresztesi testified that he was a member of the Coffln Cheaters motor cycle club. However, he had not worn his club patch on his clothing since He described the club as a bunch of old-timers riding together. On September 2, 2010, Keresztesi called a phone number that he believed to be the Hell's Angel headquarters in Cleveland. The next day he received a return call from co-defendant Justin Seliskar. Keresztesi knew Seliskar since the latter was a child, but had not spent any time with him. It was agreed that they would meet that evening about 8:30 at Rockne's in Medina to discuss the Coffin Cheater's decision to again wear patches. Keresztesi called fellow Coffin Cheater Victor Latori to meet him at the restaurant. The two Cheaters did meet in the Rocknes parking lot at the scheduled time. They went into the restaurant and asked the hostess if the Angels had arrived. They were directed outside to 3

6 the back. Upon walking outside, Keresztesi saw three men standing by three Harley Davidson motorcycles in the parking lot. Keresztesi shook hands with Stage and engaged in a friendly shoulder bump. He introduced Latori to the others. He did not know the identity of the third male. Stage asked him for the name of the club. Keresztesi answered the Coffin Cheaters. Immediately thereafter, according to Keresztesi, Stage punched him in the eye on the right side of his face with his left hand without warning. Keresztesi knew Stage was left-handed. Keresztesi placed his hands in front of his face in a defensive position. Five to six seconds later, he said that he saw Stage reach into his jacket or vest. Keresztesi thought that Stage then hit him over the head with a piece of steel. It may have been a "sap" or baton. According to Keresztesi, Stage then stated "If I see you with that patch on again, I'm going to kill you." The three men left without further incident. Keresztesi then did a "fast trot" to the car. He denied falling at any time. He told Latori to ca11911 as his head was bleeding. The ambulance and the police arrived a short time later at about the same time. Keresztesi was taken to Medina General Hospital. At the hospital, Keresztesi received 11 or 12 stitches. He had to return to the hospital one additional time to have them removed. Keresztesi believed that he had a "floater" in his eye. He acknowledged that it could be the beginning of a cataract. No medical personnel testified about an injury to the eye. Keresztesi refused to undergo a CAT scan at the hospital because he had to wait too long for it to be provided and he did not think that he needed it. Francisco Ortiz testified that he was a physicians assistant at the Emergency Department 4

7 of the Fast Track unit of the hospital. Suturing wounds was one of his duties. Ortiz treated Keresztesi for a 3cm or 1.2 inch long laceration on the top of his forehead. He placed 11 stitches in the wound, which was numbed with a local anesthetic before the suturing began. There were no other injuries to Keresztesi other than a contusion on the cheek. Keresztesi was not in distress when being attended to by Mr. Ortiz. Mr. Ortiz testified that he had treated between patients for lacerations caused by objects other than a fist. It was his opinion that a fist could not be the cause of a laceration to the scalp because the skin in that area was tight and hard. A ring worn on a finger could cause such aninjury. Keresztesi did not inform Ortiz that he had been hit with any particular object, just that it was an object. Ortiz acknowledged that he had never personally treated anyone who had been struck on the head with a hammer or a steel object. Restaurant Patrons Holly Hofstetter accompanied her daughter and her daughter's fiance to Rocknes for dinner. She noticed Keresztesi and Latori as she was entering the restaurant. She then heard a loud noise. She turned and saw Keresztesi being punched. Ms. Hoffstetter did not see anything leading up to the punch. She did not see any object in the assailant's hand. He then turned and walked towards them. He was bleeding from the left side of his forehead. She did not see him fall at anytime. She could not identify any of the three men near the motorcycles. Nicole Hofstterer, Holly's daughter, testified that when she arrived at Rocknes that evening she noticed three motorcycles in the parking lot of a spa across from the restaurant. She heard shouting from the direction of the motorcycles. She then saw Keresztesi being punched by a man using his right hand. She head Keresztesi tell Latori to call 911 a few moments after being 5

8 punched. She failed to notice any injury until the ambulance arrived. Keresztesi was bleeding onto the sidewalk. Nicole did not see Keresztesi fall. She was unable to identify the three men near the motorcycles. She thought she heard the striker say something to the effect of "don't let anybody do this again or something like that." Defense Case The defense called one witness. Victor Ventresca testified that he was a martial arts trainer and had been a mixed martial arts judge and referee for five or six years. He had officiated over a few hundred fights during that period. Ventresca noted that cuts often occurred during such fights which resulted in a fighter requiring stitches. The defense had provided Mr. Ventresca photos of Keresztesi injuries and requested that he render an opinion whether the injuries were consistent with someone who had been injured in a martial arts fight. He opined that the injuries were consistent with those requiring stitches from such fights. The facts will be further discussed in the following Propositions of Law. Proposition of Law I: ARGUMENT A fight does not result in serious physical injury pursuant to R.C (A)(1) where the victim suffers a laceration requiring stitches where there is no long term mental or physical suffering as result of that injury. The appellant Scott Stage was convicted by a jury of Felonious Assault in violation of 6

9 R.C (A)(1). This charge requires that Stage knowingly caused serious physical harm to another. Serious physical harm is defined as harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; or that involves acute pain of such duration as to result in substantial suffering; or that involves any degree of prolonged or intractable pain. Here, viewed in a light most favorable to the prosecution, Stage caused physical harm. The victim suffered a laceration as the result of a punch which required stitches. However, the evidence does not prove beyond a reasonable doubt that the victim suffered serious physical harm. Therefore, the evidence supports a finding of simple assault only. Sufficienev Standard Under the Due Process Clause of the Fourteenth Amendment, a defendant in a criminal case is protected against conviction except upon proof beyond a reasonable doubt of every element necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364 (1970); Davis v. United States, 160 U.S. 469, (1895). The United States Supreme Court set forth the standard for sufficiency review in Jackson v. Virginia (1979), 443 U.S The reviewing court is to view all the evidence in the light most favorable to the prosecution. In doing so, the court must then determine whether any reasonable trier of fact could find the essential elements of the crime proven beyond a reasonable doubt. The state must prove each and every element of the offense charged by evidence beyond a reasonable doubt in order to sustain a conviction. State v. Jenks (1991), 61 Ohio St. 3d 259. Present Case Stage was convicted of violating R.C (A)(1), felonious assault. The relevant part of the felonious assault statute provides: 7

10 (A) No person shall knowingly do either of the following: (1) Cause serious physical harm to another or to another's unborn ***." Serious physical harm" is defined in R.C (A)(5) as: As used in the Revised Code: (5) Serious physical harm to persons' means any of the following in relevant part: (Emphasis added) c. Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; d. Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; e. Any physical hann that involves acute pain of such duration as to result in substantial suffering or that involves any degree ofprolonged or intractable pain. The question of the element of serious physical harm is often litigated. The degree of harm that rises to level of 'serious' physical harm is not an exact science, particularly when the definition includes such terms as 'substantial,' 'temporary; 'acute,' and 'prolonged."' State v. Irwin, Mahoning App. No. 06MA20, 2007 Ohio 4996, at P37. This Court has not yet accepted this issue. However, the appellate courts have adopted a line of cases which would seem to run afoul with the rules of construction which require that sections of statutes defining an offense "shall be strictly construed against the state, and liberally construed in the favor of the accused." R.C (A). An outline of these lines of cases will be addressed here. The common theme in these cases is that, unlike Stage, the victims testified that they suffered prolonged or intractable pain. For instance, in State v. Lee, 8th Dist. No , 2003 Ohio 5640, 2008 Ohio 253, the victim 8

11 testified that she was struck in the back of her head and lost consciousness; both of her eyes were swollen shut and that she had bruises on her lips, chin, and nose. The victim stated that on the date of the altercation she had braces on her teeth and that her skin got caught in them; her lips were swollen. The victim took Tylenol for pain. The victim testified that she called off of work for two days; the victim stated that she was only scheduled to work those two days. The Eight District Court of Appeals found the element of serious physical injury to have been sufficiently proven. Lee held that "[w]here injuries are serious enough to cause him or her to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by R.C (A)(5)." Id., P 24, citing State v. Wilson (Sept. 21, 2000), 8th Dist. No , 2000 Ohio App. LEXIS See, also, State v. Euler, 6th Dist. No. WD , 2004 Ohio In State v. Sandridee, 2006 Ohio 5243, 2006 Ohio App. Lexis 5224, the Eighth District Court of Appeals, citing Lee, suura, noted that the following was serious physical harm. The victim testified that the defendant grabbed her by the throat and thrust his fingers down her throat. She testified that she had to seek medical treatment as a result of the incident. Finally, she testified that as a result of the defendant's action, her neck was swollen and bruised, she had a sore throat, and she was unable to eat solid foods for three weeks. In State v. Journev, 2010 Ohio 2055, 2010 Ohio App. Lexis 2105, the Fourth District Court of Appeals found that the evidence demonstrates that the baby suffered a laceration to his ear and that the baby subsequently received medical attention. The examining doctors suspected that someone had either bitten the baby's ear or that someone's fingernails cut the baby. 9

12 Appellant's daughter stated that Evans bit the baby's ear. The photographs of the baby's ear show blood around the upper ear lobe and a cut to the back of the ear. Dr. Cheatham testified that a "marked amount of force" had to have been used to cause the injury and that it is difficult to "tear" flesh. It is difficult to imagine that an eleven-month old baby would not experience "acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain" upon being bitten or scratched so as to cause a visible laceration. Courts have apparently drawn the line with element in question with the emission of blood. The appearance of a bruise or a temporary or slight injury generally does not constitute serious physical harm. State v. Dau t?l iertx, Ross App. No. 00CA2572, 2001 Ohio 2670, citing State v. Ivev (1994), 98 Ohio App.3d 249, 648 N.E.2d 519; State v. Massev (1998), 128 Ohio App. 3d 438, 715 N.E.2d 235; In re Schuerman (1991), 74 Ohio App.3d 528, 599 N.E.2d 728. Presumption Issue As noted, courts have held that when a victim's injuries "'are serious enough to cause him or her to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by R.C (A)(5)."' State v. Smith, Cuyahoga App. No , 2008 Ohio 5985, at P25, quoting State v. Lee, sunra, citing State v. Wilson supra. For instance, a one centimeter cut above the right eyebrow constitutes serious physical harm. See State v. Edwards (1992), 83 Ohio App. 3d 357, 614 N.E.2d 1123; The cases providing the element of serious physical harm by presuming the intractable or prolonged suffering from the injury are creating an unconstitutional mandatory presumption. Sandstrom v. Montana, 442 U.S. 510, 524 (1979) A presumption is unconstitutional if it "undermines the factfmder's responsibility... to find the elements of a crime beyond a 10

13 reasonable doubt." County Court v. Allen, 442 U.S. 140, 156 (1979). See also Francis v. Franklin, 471 U.S. 307, 317 (1985). Proposition of Law II: A recording of a 911 call is does not constitute an excited utterance pursuant to Evidence Rule 803(2) were the caller has had adequate time to reflect upon the stimulating incident and he statement is based upon his reasoning rather that a product of that incident. The trial court improperly allowed a 911 tape, state exhibit 1, into evidence. Although the tape was clearly hearsay, the court found it to constitute an excited utterance pursuant to Evid. R. 803(2). A close look at the existing caselaw reveals this decision is erroneous. The tape not only was not an excited utterance as it was the result of reflective thought by the declarant, the content was testimonial in nature, in violation of Crawford v. Washington (2004), 451 U.S. 36. Over objection, the judge allowed the playing off the tape, although the caller was not a witness. Excited Utterance Considerations The exceptions to this general prohibition are enumerated in Evid.R Pertinent to this appeal is Evid.R. 803(2), which permits the admission of the following: Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. In Potter v. Baker (1955), 162 Ohio St. 488, this Court established a four-part test to determine the admissibility of a "spontaneous exclamation." Such testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge reasonably finds: 11

14 (1) That there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective; (2) That the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, (3) That the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and; (4) That the declarant had an opportunity to observe personally the matters asserted in his statement or declaration." (Emphasis sic.) Id. at paragraph two of the syllabus (approved and followed in State v. Duncan (1978), 53 Ohio St.2d 215, paragraph one of the syllabus). There is no per se amount of time after which a statement can no longer be considered to be an excited utterance. The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be a result of reflective thought. State v. TaYor, (1993) 66 Ohio St.3d 295, para Therefore, the passage of time between the statement and the event is relevant but not dispositive of the question. "[E]ach case must be decided on its own circumstances, since it is patently futile to attempt to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation." State v. Duncan, snvra, 53 Ohio St.2d at ; State v. Boston (1989), 46 Ohio St.3d 108, Testimonial 12

15 The 911 tape is testimonial. The Sixth Circuit in U.S. v. Cromer (C.A.6, 2004), 389 F.3d 662, 673, held that a statement is testimonial if it is "made in circumstances in which a reasonable person would realize that it likely would be used in an investigation or prosecution of a crime." In applying that test, the court decided that the informant's statements were testimonial. Id. at 675. In the present case based on the evidence in the record, the decision of the trial court to admit the disputed testimony was reasonable. Latori was not a target of any assault. He was specifically told to "stay out of this." He observed is friend being struck. He then called the police at the direction of Keresztesi. Latori then granted the request and called the police and related the incident. The evidence is insufficient to find that when Victor Latori made his 911 statements that he was under the stress of excitement caused by the startling occurrence rather than that the statements were the narrative result of reflective thought. Proposition of Law III: Where the victims testimony is inherently inconsistent with not only his prior statements, but also his actual testimony, and is not adequately corroborated by other witness testimony, a resultant guilty verdict is against that weight of the evidence. One of the central issues in the case was the credibility of the victim, Steve Keresztesi. Mr. Keresztesi testified that he believed that Stage struck him with a steel object of some kind. The defense argued that no such item was ever used. hi a jury's consideration of whether the injury was a serious physical injury, it might well consider whether a fist or a weapon was the cause of the injury. In addition, how the injury occurred is certainly a relevant consideration. Francisco Ortiz, a physician's assistant, was of the opinion that the injury was caused by 13

16 an object of some kind because he did not believe that a fist could cause a 1.2 inch laceration. The prosecutor improperly asked Ortiz, "and you believe what he told you, right?" Ortiz answered affirmatively. As the result, Ortiz improperly vouched for the credibility of Keresztesi. Effectiveness Standard The United States Supreme Court set forth the minimum standard for effective assistance in Strickland v. Washin gon t (1984), 466 U.S. 68. A two-step test was announced. First, the defendant must show that counsel's performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense. This latter test requires that counsel's errors were so serious as to deprive the defendant of a fair trial. As for the prejudice prong of the Strickland test, the Court instructed: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Stricklan d, 466 U.S. at 694. Here, Mr. Ortz was able to state that in his view, Keresztesi was injured in the manner he claimed. The bolstering or vouching of his credibility would have the derivative effect of permitting the jury to believe the victims claims of headaches and the "floater" in his eye, which may have formed the basis for the jury finding on the element of serious physical injury. Here, Mr. Ortiz testimony was entirely irrelevant to the jury's duties. It is improper for a witness to vouch for another witness or make a credibility assessment of another witness. State v. Vanik, 2003 Ohio 6975 (11' Dist). The problem with such testimony is that it is an improper invasion of the fact-finding process and is highly prejudicial to a defendant. See State v. Boston (1989), 46 Ohio St.3d at 128. It is the jury's duty to determine who was being truthful and if a 14

17 witness is testifying consistently. Id. at 129. The failure of trial counsel to object and have the response stricken was a violation of his duty to Mr. Stage. The reliability of the subsequent jury verdict must therefore be questioned, requiring a new trial. CONCLUSION Pursuant to the preceding Propositions of Law, the defendant-appellant, Scott Stage, respectfixlly requests that this Honorable Court accept jurisdiction of this case and decide the issue on its merits. DAVID L.'DO1 Counsel for Ap CERTIFICATE OF SERVICE A copy of the foregoing Appellant's Motion was served by regular U.S. mail upon Dean Holman, Medina County Prosecutor, and/or Scott G. Salisbury, Assistant County Prosecutor, 72 Public Square, Medina, OH on this Wday of August, DA L. DOU Counsel for App nt 15

18 APPENDIX

19 Get a Document - by Party Name - stage Page 1 of Ohio 3300, *; 2012 Ohio App. LEXIS 2903, ** STATE OF OHIO, Appellee v. SCOTT E. STAGE, Appellant C.A. No. 11CA0077-M COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, MEDINA COUNTY 2012 Ohio 3300; 2012 Ohio App. LEXIS 2903 ]uly 23, 2012, Decided PRIOR HISTORY: [**1] APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS, COUNTY OF MEDINA, OHIO. CASE No. 10-CR DISPOSITION: Judgment affirmed. CASE SUMMARY: PROCEDURAL POSTURE: Following a jury trial, the Medina County Court of Common Pleas (Ohio) convicted defendant of felonious assault, in violation of R.C (A)(1). Defendant appealed. OVERVIEW: Defendant argued that there was insufficient evidence to find him guilty of felonious assault because the victim did not suffer serious physical harm. The appellate court held that there was sufficient evidence to support a conviction for felonious assault. There was evidence of some permanent disfigurement for serious physical harm under R.C (A)(5)(d) because, among other things, the victim testified that the injury still caused him headaches and the cut to his forehead left a permanent indentation, which he showed to the jury. Further, given the 911 caller's tone of voice and the statements about not being able to stop the bleeding, the evidence supported the trial court's finding that the recorded statements were made while the caller (the victim's friend) was still in a state of nervous excitement created by observing a startling event. Also, the primary purpose of the call was to address an ongoing emergency. The dispatcher's questions and the caller's responses regarding the attackers were objectively aimed at determining whether the physical threat continued. Thus, the caller's statements were non-testimonial and did not violate the Confrontation Clause. OUTCOME: The judgment of the trial court was affirmed. CORE TERMS: assignment of error, recording, motorcycle, physical harm, manifest, interrogation, testimonial, utterance, disfigurement, ineffective, emergency, excited, insignia, biker's, primary purpose, objectively, ongoing, hearsay rule, felonious assault, sufficient evidence, non-testimonial, credibility, probability, admissible, dispatcher, ambulance, declarant, startling, forehead, hearsay LEXISNEXIS(R) HEADNOTES Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Sufficiency of Evidence to Convict Nro1+ Whether a conviction is supported by sufficient evidence is a question of law that an bro... 8/25/2012

20 Get a Document - by Party Name - stage Page 2 of 8 appellate court reviews de novo. An appellate court must determine whether, viewing the evidence in a light most favorable to the prosecution, it could have convinced the average finder of fact of his guilt beyond a reasonable doubt. Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Aggravated Offenses > Elements Criminal Law & Procedure > Scienter > Knowledge HN2+_Under R.C (A)(1), no person shall knowingly cause serious physical harm to another. "Serious physical harm" is defined as any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement or any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain. R.C (A)(5)(d), (e). Criminal Law & Procedure > Witnesses > Credibility Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > Verdicts xn3-iif a defendant argues that his conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine 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. Evidence > Hearsay > Exceptions > Spontaneous Statements > Elements Evidence > Hearsay > Rule Components > General Overview HN43"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid. R. 801(C). Under Evid.R. 802, hearsay is generally inadmissible unless it falls within a recognized exception. Under Evid.R. 803(2), 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. Exited utterances are not excluded by the hearsay rule, even though the declarant is available as a witness. Evid. R Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Right to Confrontation NN5_+The Confrontation Clause prohibits out-of-court testimonial statements unless the witness was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Describing testimonial versus non-testimonial statements, it has been held 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. They 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. The initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to establish or prove some past fact, but to describe current circumstances requiring police assistance. Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Right to Confrontation ttro6+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. The c90f4616c0d6ba&_bro... 8/25/2012

21 Get a Document - by Party Name - stage Page 3 of 8 existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public. Criminal Law & Procedure > Counsel > Effective Assistance > Tests HN7,+To establish that his lawyer was ineffective, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. COUNSEL: DAVID L. DOUGHTEN, Attorney at Law, for Appellant. DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting Attorney, for Appellee. JUDGES: CLAIR E. DICKINSON, Judge. WHITMORE, P. J., MOORE, J., CONCUR. OPINION BY: CLAIR E. DICKINSON OPINION DECISION AND JOURNAL ENTRY DICKINSON, Judge. INTRODUCTION [*P1] Steven Keresztesi Jr. went to meet some representatives of the Hells Angels to discuss his motorcycle club's desire to wear its club insignia while riding motorcycles in northeast Ohio. He testified that one of the Hells Angels members, Scott Stage, punched him, then struck him over the head with something metal, causing a cut that required stiches and left a permanent indentation on his forehead. A jury convicted Mr. Stage of felonious assault, and he has appealed. This Court affirms because the conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, Mr. Stage was not prejudiced by the admission of a 911 recording, and his lawyer was not ineffective. BACKGROUND [*P2] On September 3, 2010, Mr. Keresztesi made arrangements to meet with some representatives [**2] of the Hells Angels of Cleveland at the Rockne's restaurant on State Route 18 at Interstate 71. He called his friend Victor Latori and asked him to meet him at Rockne's as well. Mr. Keresztesi testified that he did not know who to expect at the meeting, but that someone from the Hells Angels was going to be there to discuss whether members of the Coffin Cheaters would be permitted to display their insignia while riding motorcycles in the northeast Ohio area. Mr. Keresztesi testified that the members of the Coffin Cheaters Motorcycle Club had not publically worn the group's insignia for many years. According to Mr. Keresztesi, when his club started wearing the insignia again in the summer of 2010, he received several calls from unnamed people warning him that he must discuss the issue with the Hells Angels. Mr. Keresztesi testified that, as he understood the rules of motorcycle clubs in this area, other clubs cannot display a club insignia without paying a fee to the local Hells Angels. Mr. Keresztesi agreed to meet with representatives of the Hells Angels to explain that the Coffin Cheaters were not the type of motorcycle club that should have to pay the fee. c90f4616cod6ba&_bro... 8/25/2012

22 Get a Document - by Party Name -stage Page 4 of 8 [*P3] Although Mr. Keresztesi [**3] and Mr. Latori are members of the Coffin Cheaters Motorcycle Club, they both drove cars to Rockne's that evening. Mr. Keresztesi testified that he and Mr. Latori approached three men standing in an adjacent parking lot near three Harley Davidson motorcycles. According to Mr. Keresztesi, as he approached, he realized that he had met two of the men before. Scott Stage and Justin Seliskar both shook hands with Mr. Keresztesi, and he introduced them to Mr. Latori. Mr. Keresztesi did not know the third biker, and that man did not join the conversation. [*P4] According to Mr. Keresztesi, he began explaining to Mr. Stage that the Coffin Cheaters are not like other motorcycle clubs because its members are just old men riding with their kids in Medina, Wayne, and Holmes Counties. Mr. Stage then asked Mr. Keresztesi a question and, while Mr. Keresztesi was looking away, Mr. Stage "sucker punched" him in the eye. Mr. Keresztesi said that he "rocked back and forth" and covered his eyes with his hands. When he moved his hands, he saw Mr. Stage reach into his jacket and pull something out. Mr. Stage then slammed the object into the top of Mr. Keresztesi's head as Mr. Keresztesi tried to turn away. Mr. [**4] Keresztesi was not sure what the object was, but he thought it was made of metal. Mr. Keresztesi testified that "[i]t thumped" "like hitting the side of a big garbage can." He said that Mr. Stage told him that if he caught him displaying the Coffin Cheaters patch he would kill him. Then Mr. Stage and the other bikers drove away, and Mr. Keresztesi and Mr. Latori went back to their cars and called 911. SUFFICIENCY [*P5] Mr. Stage's first assignment of error is that there was insufficient evidence to find him guilty of felonious assault because Mr. Keresztesi did not suffer serious physical harm. NNa +Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386, 1997 Ohio 52, 678 N.E.2d 541 (1997); State v. West, 9th Dist. No. 04CA008554, 2005 Ohio 990, 33, We must determine whether, viewing the evidence in a light most favorable to the prosecution, it could have convinced the average finder of fact of his guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991). [*P6] HN21FUnder Section (A)(1) of the Ohio Revised Code, "[n]o person shall knowingly... [c]ause serious physical harm to [**5] another...." "Serious physical harm" is defined as "[a]ny physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement" or "[a]ny physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain." R.C (A)(5)(d), (e). [*P7] Francisco Ortiz, the physician's assistant who treated Mr. Keresztesi at the hospital on the night of the incident, testified that Mr. Keresztesi arrived by ambulance and presented with bruising and swelling on his right cheek and a three-centimeter laceration on his forehead. Mr. Ortiz closed the laceration with 11 stiches and ordered a head CT, but Mr. Keresztesi refused the test. Mr. Keresztesi testified that his right eye had swelled shut after the incident and when it opened again, he had a "floater" in his vision "like a big snowflake." He also testified that the injury still caused him headaches at the time of trial and the cut to his forehead left a permanent indentation, which he showed to the jury. As there was evidence of "some permanent disfigurement," there was sufficient evidence to support a conviction for [**6] felonious assault. R.C (A)(5)(d). Mr. Stage's first assignment of error is overruled. MANIFEST WEIGHT OF THE EVIDENCE [*P8] Mr. Stage's fourth assignment of error is that his conviction is against the manifest weight of the evidence. HN3-+'Tf a defendant argues that his conviction is against the manifest weight of the evidence, this Court "must review the entire record, weigh the evidence and all Y 3c9Of4616cOd6ba&-bro... 8/25/2012

23 Get a Document - by Party Name - stage Page 5 of 8 reasonable inferences, consider the credibility of witnesses and determine 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." State v. Otten, 33 Ohio App. 3d 339, 340, 515 N.E.2d 1009 (9th Dist. 1986). [*P9] Mr. Stage has argued that the jury could not have reasonably believed that Mr. Keresztesi suffered a prolonged and intractable injury as a result of this incident. In relation to this assignment of error, he has made no mention of whether the jury could have reasonably believed that Mr. Keresztesi suffered any permanent disfigurement. [*PSO] Mr. Keresztesi testified that he had a "floater" in his eye that was caused by the punch, but later testified that such a thing could [**7] be caused by his age. He also testified that he suffers from headaches as a result of the incident with Mr. Stage. Mr. Stage has pointed out that no doctor testified about the injury or any lasting effects of it, Mr. Keresztesi refused to submit to the CT scan ordered by the physician's assistant on the day of the incident, and he did not produce any receipts or other evidence of additional treatment. His argument is essentially that the only evidence of serious physical harm came from Mr. Keresztesi, whose testimony was "fraught with inconsistencies" about the background of the meeting at Rockne's and the history of some animosity between him and the Hells Angels of Cleveland. Mr. Keresztesi's testimony was not "fraught with inconsistencies" and there was objective evidence of some permanent disfigurement. This is not the rare case in which the jury has clearly lost its way and created a manifest miscarriage of justice requiring a new trial. The jury did not lose its way in determining that Mr. Stage knowingly caused serious physical harm to Mr. Keresztesi. Mr. Stage's fourth assignment of error is overruled. THE 911 RECORDING [*P11] Mr. Stage's second assignment of error is that the trial [**8] court incorrectly admitted a recording of a call Mr. Latori placed to a 911 operator following the alleged attack. The trial court determined the recording was admissible under the excited utterance exception to the hearsay rule. Mr. Stage has argued that the content of the 911 recording was not an excited utterance under Rule 803(2) of the Ohio Rules of Evidence because it was the result of reflective thought and, because Mr. Latori did not testify at trial, it contained testimonial statements in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). [*P12] HM4V"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid. R. 801(C). Under Evidence Rule 802, hearsay is generally inadmissible unless it falls within a recognized exception. Under Evidence Rule 803(2), 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." Exited utterances "are not excluded by the hearsay rule, even though the declarant is available as a witness." Evid. R [*P13] Mr. Stage's argument [**9] is not clear, but seems to be limited to challenging the amount of time that passed between the startling event and the contested statements. Although he has argued that the recorded statements cannot be admissible as excited utterances because they were the result of reflective thought, he has not pointed to any evidence in the record indicating how much time passed between the alleged attack and the 911 call. The evidence suggests, however, that Mr. Latori placed the call within moments of the incident. During the call, he asked for an ambulance and explained that they were trying to put pressure on the wound, but they were having trouble controlling the bleeding from his friend's head. Given the caller's tone of voice and the statements about not being able to stop the bleeding, the evidence supports the trial court's finding that the recorded statements were made while Mr. Latori was still in a state of nervous excitement created by observing a startling event. To the extent that Mr. Stage's second assignment of error addresses hearsay, it is overruled. bro... 8/25/2012

24 Get a Document - by Party Name - stage Page 6 of 8 [*P14] Mr. Stage has also challenged the admission of the 911 recording based on the fact that Mr. Latori did not testify at trial. HN$TThe [**10] Confrontation Clause prohibits out-ofcourt testimonial statements "unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Supreme Court described testimonial versus nontestimonial statements. The Court held that "[statements are nontestimonial 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. They 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. at 822. In Davis, the Supreme Court wrote that "the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establish or prov[e]' some past fact, but to describe current circumstances requiring police assistance." Id. at 827. [*P15] More recently, in Michigan v. Bryant, U.S., 131 S. Ct. 1143, 1156, 179 L. Ed. 2d 93 (2011), [**11] the Supreme Court explained that, HN61P"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 The Court also explained that "the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public." Id. [*P16] Mr. Stage has broadly challenged the entire recording rather than objecting to the admission of certain statements he believes are testimonial. An objective review of the recording indicates that the primary purpose of the call was to address an ongoing emergency. Mr. Latori asked the dispatcher to send an ambulance because they had been attacked by Hells Angels and needed help. He explained that his friend had a significant wound to his head and that they could not stop the bleeding. [*P17] The statements are non-testimonial as the circumstances indicate they were aimed at helping the dispatcher address an ongoing medical emergency. As the call continued, the dispatcher [**12] asked additional questions about the attackers. Mr. Latori told her that there were three of them, he did not know who they were, they had left the scene, and he did not know which direction they went. These questions and responses were objectively aimed at determining whether the physical threat continued for these victims, the police, or the public at large. Therefore, Mr. Latori's statements are non-testimonial and do not violate the Confrontation Clause. Mr. Stage's second assignment of error is overruled. INEFFECTIVE ASSISTANCE OF COUNSEL [*P18] Mr. Stage's third assignment of error is that his lawyer was ineffective for failing to object to an improper question by the prosecutor. HNTTfo establish that his lawyer was ineffective, Mr. Stage "must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different." State v. Hale, 119 Ohio St. 3d 118, 2008 Ohio 3426, 204, 892 N.E.2d 864 (citing Strickland v. Washington, 466 U.S. 668, , 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373, paragraph two of the syllabus [**13] (1989)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at c90f4616cod6ba&_bro... 8/25/2012

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