<img alt="Brand" src="/images/eLaws/logo-elaws.png" class="img-responsive pull-left logo-head" />

, and whether
the violation of Fry’s allocution right constitutes harmless error.
{¶ 37} We will examine Fry’s issues in the following order: pretrial and
trial issues, penalty-phase issues, ineffective assistance of counsel issues, and,
finally, the remaining issues raised.
A. Pretrial and Trial Issues
8
January Term, 2010
1. Sufficiency of the Indictment (Proposition of Law XI)
{¶ 38} Fry argues that his indictment for aggravated felony murder in
Count One, the accompanying death-penalty specification in Specification One,
and felony murder in Count Three are constitutionally defective because they fail
to specify every element of the underlying offenses. In particular, he argues that
some of his indictments do not specify a mens rea. Fry did not challenge the
sufficiency of his indictment at trial.
{¶ 39} During the pendency of Fry’s appeal, this court decided State v.
Colon,

118 Ohio St.3d 26

2008-Ohio-1624

885 N.E.2d 917

 (“Colon I”), which
held: “When an indictment fails to charge a mens rea element of a crime and the
defendant fails to raise that defect in the trial court, the defendant has not waived
the defect in the indictment.”

Id.

 at syllabus. In State v. Colon,

119 Ohio St.3d 204

2008-Ohio-3749

893 N.E.2d 169

 (“Colon II”), this court clarified that when
a defendant fails to preserve objections to a defective indictment during the course
of a trial, the issues are generally forfeited and must be reviewed under a plain-
error analysis except in rare cases of structural error. Id. at ¶ 7.
a. Aggravated felony murder
{¶ 40} With respect to the aggravated felony-murder charge, Count One of
the indictment followed the wording of R.C. 2903.01(B). The indictment alleged
that Fry “commit[ted] the crime of AGGRAVATED MURDER in that he did
purposely cause the death of Tamela Hardison, while committing or attempting to
commit, or while fleeing immediately after committing or attempting to commit
Aggravated Burglary, and/or Burglary.” (Italics added.) The indictment specified
a mens rea requirement. The culpable mental state for this offense is purpose—to
“purposely cause.” R.C. 2903.01(B). See State v. Koger, 6th Dist. No. L-05-
1265,

2007-Ohio-2398

, ¶ 30 (“aggravated felony murder requires a culpable
mental state of ‘purpose’ ”). Thus, the indictment was proper because it included
the culpable mental state for this offense.
9
SUPREME COURT OF OHIO
{¶ 41} Fry argues that the indictment is defective because none of the
elements of the underlying offense of aggravated burglary is specified in Count
One.      The indictment, however, included the separately charged offense of
aggravated burglary in Count Four, which correctly listed the elements of this
offense.    The aggravated felony-murder count, read in pari materia with the
related aggravated burglary count, provided ample notification of the elements of
the underlying offenses that the state was required to prove. See State v. Foust,

105 Ohio St.3d 137

2004-Ohio-7006

823 N.E.2d 836

, ¶ 29. Thus, the indictment
for Count One was not defective.
b. Felony murder
{¶ 42} Count Three of the indictment charged Fry with murder and/or
felony murder under R.C. 2903.02(A) and (B). The indictment states: Fry “did
purposely cause the death of Tamela Hardison, and/or did cause the death of
Tamela Hardison as a proximate result of [the defendant’s] committing or
attempting to commit Felonious Assault, or Aggravated Burglary, an offense of
violence that is a felony of the first or second degree.” Although Fry was charged
with two forms of murder in Count Three, felony murder and purposeful murder,
the trial court instructed the jury on only felony murder with respect to this
charge.
{¶ 43} The indictment for felony murder in Count Three does not specify a
mens rea because R.C. 2903.02(B), the felony-murder statute, does not contain a
mens rea component. See State v. Miller,

96 Ohio St.3d 384

2002-Ohio-4931

775 N.E.2d 498

, ¶ 31-33 (defendant may be found guilty of felony murder even if
there was no intent to cause the victim’s death). Rather, a person commits felony
murder pursuant to R.C. 2903.02(B) by proximately causing another’s death while
possessing the mens rea element set forth in the underlying felony offense. In
other words, the predicate offense contains the mens rea element for felony
murder. See State v. Sandoval, 9th Dist. No. 07CA009276,

2008-Ohio-4402

, ¶
10
January Term, 2010
21. Thus, the mens rea element need not appear in the count for felony murder as
long as the mens rea component is specified in the count charging the predicate
offense.2
{¶ 44} Count Three specifies aggravated burglary or felonious assault as
the predicate offenses for the felony murder. The offense of aggravated burglary
was charged separately in Count Four. The aggravated-burglary count states:
“Fry * * * did commit the crime of AGGRAVATED BURGLARY in that he did,
by force, stealth, or deception, trespass in an occupied structure * * * when
another person * * * was present, with purpose to commit in said structure * * * a
criminal offense, and [the defendant] inflicted, threatened or attempted to inflict
physical harm on Tamela Hardison, and/or [the defendant] had a deadly weapon
or dangerous ordnance * * *.” (Italics added.) The culpable mental state for
aggravated burglary is “purposeful” and was properly set out in the indictment.
See State v. Conley, 4th Dist. No. 08CA784,

2009-Ohio-1848

, ¶ 40.
{¶ 45} The mens rea for felonious assault, however, was not set forth
anywhere in the indictment. The culpable mental state for felonious assault is
“knowingly.” R.C. 2903.11(A)(1). Unlike aggravated burglary, felonious assault
was not charged as a separate offense.
{¶ 46} The prosecutor argued that Fry committed felony murder while
committing either aggravated burglary or felonious assault.                    However, the
prosecutor did not specifically state that Fry had acted knowingly when
committing felonious assault. The trial court also failed to instruct on the mens
rea element of “knowingly” for felonious assault when advising the jury of the
elements of this offense.
2. Ohio courts of appeals that have considered the applicability of Colon I to indictments for
felony murder have adopted this rationale in appropriately upholding such indictments. See State
v. Nesbitt, 1st Dist. No. C-0800010,

2009-Ohio-972

, ¶ 38-41; State v. Clark, 7th Dist. No. 08 MA
15,

2009-Ohio-3328

, ¶ 81, 93-97; State v. Minifee, 8th Dist. No. 91017,

2009-Ohio-3089

, ¶ 53-54;
State v. Sandoval, 9th Dist. No. 07CA009276,

2008-Ohio-4402

, ¶ 21-24.
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SUPREME COURT OF OHIO
{¶ 47} Nevertheless, as in Colon II, this does not appear to be the “rare”
case where a structural-error analysis is necessary. State v. Colon,

119 Ohio St.3d 204

2008-Ohio-3749

893 N.E.2d 169

, ¶ 8. Aggravated burglary and felonious
assault were charged as alternative offenses underlying the felony-murder
indictment. Aggravated burglary was properly charged in the indictment, and the
jury found Fry guilty of this separately charged offense. Thus, the felony-murder
indictment did not result in structural error, because aggravated burglary was
properly charged as a predicate offense.
{¶ 48} Furthermore, in Hedgpeth v. Pulido (2008), __ U.S. __,

129 S.Ct. 530

172 L.Ed.2d 388

, the United States Supreme Court concluded that instructing
a jury on multiple theories of guilt, one of which is invalid, is not a structural error
requiring that a general verdict be set aside without regard to whether the
instructional error prejudiced the defendant.

Id. at 532

. Hedgpeth addressed
instructional error rather than a defective indictment. But Hedgpeth illustrates
that an error arising in the context of multiple theories of guilt does not vitiate the
remaining findings that are supported on valid grounds. The same logic would
uphold Fry’s felony-murder indictment because aggravated burglary was properly
charged and was sufficient to support the jury’s findings in this case. See also
State v. Gray, 5th Dist. No. 2007-CA-0064,

2009-Ohio-455

, ¶ 34-36.
{¶ 49} We therefore apply a plain-error analysis to the indictment. There
is nothing in the record to show that Fry was prejudiced by the omission of mens
rea in the felonious-assault allegation. Also, as previously discussed, the jury
could find Fry guilty of felony murder based on the commission of aggravated
burglary, which was properly charged in the indictment.
c. Death-penalty specification
{¶ 50} Count One in the indictment charged Fry with a death-penalty
specification for felony murder under R.C. 2929.04(A)(7). The indictment states
that “the Aggravated Murder was committed while [the defendant] was
12
January Term, 2010
committing, attempting to commit, or fleeing immediately after committing or
attempting to commit Aggravated Burglary, and [the defendant] was the principal
offender in the commission of the Aggravated Murder * * *.”
{¶ 51} The felony-murder specification does not set forth the mens rea
because R.C. 2929.04(A)(7) does not include a mens rea component. Aggravated
burglary was charged as the sole predicate offense in Specification One. As
previously discussed, aggravated burglary was separately charged, and the
indictment properly alleged the mens rea for this offense. Accordingly, there was
no defect in this indictment, because aggravated burglary contains the mens rea
component for felony murder.
2. Multiple Murder Counts and Mens Rea (Proposition of Law XIII)
{¶ 52} Fry argues that he was improperly charged with three different
counts of murder that involved three different mens rea: aggravated murder with
prior calculation and design, aggravated felony murder, and felony murder. Fry
asserts that the state’s simultaneous use of multiple intents to prove these different
offenses violated due process.      However, the defense did not object to the
different murder counts and has waived all but plain error. See State v. Mills
(1992),

62 Ohio St.3d 357

, 363,

582 N.E.2d 972

.
{¶ 53} “[T]he prosecution is entitled to offer differing theories as to what
actually transpired in the commission of an offense and is therefore entitled to use
its discretion in deciding which charges to level against the defendant.” State v.
Miller,

96 Ohio St.3d 384

2002-Ohio-4931

775 N.E.2d 498

, ¶ 30. Here, the
prosecution believed that the facts could support a conviction for murder with
prior calculation and design, aggravated felony murder, and felony murder for
killing Hardison. It was the jury’s duty to assess which charge, if any, was
supported by the facts presented.

Id.

{¶ 54} Fry invokes Smith v. Groose (C.A.8, 2000),

205 F.3d 1045

, in
arguing that his prosecution on the different murder charges violated due process.
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SUPREME COURT OF OHIO
However, Groose is inapposite. Groose involved the state’s use of inconsistent
theories in the prosecution of multiple defendants charged with the same single
offense.

Id. at 1049

.   Similarly, Fry’s reliance on the doctrine of equitable
estoppel in civil cases is misplaced.
{¶ 55} As a final matter, Fry’s right to not be convicted of more than one
offense based on the same conduct was not violated, because, in imposing
sentence, the trial court merged the other murder counts into Count One. See
State v. Gapen,

104 Ohio St.3d 358

2004-Ohio-6548

819 N.E.2d 1047

, ¶ 134-
135. Thus, no plain error occurred.
3. Request for African-American Counsel (Proposition of Law XVIII)
{¶ 56} Fry argues that he was deprived of the constitutional right to the
counsel of his choice because an African-American attorney was not appointed to
represent him after he requested such counsel.
{¶ 57} At his arraignment, the magistrate judge appointed Lawrence
Whitney to represent Fry. Whitney stated that he was qualified to sit first chair in
a capital case. The judge and Fry then had the following exchange:
{¶ 58} “THE COURT: Any questions, Mr. Fry?
{¶ 59} “THE DEFENDANT: Yeah. You don’t have any black lawyers?
{¶ 60} “THE COURT: Well, you can take that up with Judge Spicer.
{¶ 61} “THE DEFENDANT: All right.”
{¶ 62} Thereafter, Fry did not request that an African-American lawyer
represent him during his trial.
{¶ 63} Fry’s general inquiry about the availability of African-American
attorneys did not constitute a request that an African-American attorney represent
him. His failure to request that the trial court appoint an African-American
attorney to represent him waived this issue. See State v. Childs (1968),

14 Ohio St.2d 56

43 O.O.2d 119

236 N.E.2d 545

, paragraph three of the syllabus. The
issue also lacks merit.
14
January Term, 2010
{¶ 64} In general, an indigent defendant does not have a constitutional
right to choose the attorney who will represent him or her at state expense. See
State v. Murphy (2001),

91 Ohio St.3d 516

, 523,

747 N.E.2d 765

; Thurston v.
Maxwell (1965),

3 Ohio St.2d 92

, 93,

32 O.O.2d 63

209 N.E.2d 204

; Wilson v.
Parker (C.A.6, 2008),

515 F.3d 682

, 696. “[T]hose who do not have the means to
hire their own lawyers have no cognizable complaint so long as they are
adequately represented by attorneys appointed by the courts.” Caplin & Drysdale,
Chartered v. United States (1989),

491 U.S. 617

, 624,

109 S.Ct. 2646

105 L.Ed.2d 528

.
4. Disclosure of grand jury proceedings (Proposition of Law XII)
{¶ 65} Fry argues that the state failed to provide the defense with
exculpatory evidence that was presented to the grand jury.
{¶ 66} This court has recognized a limited exception to the general rule of
grand jury secrecy: an accused is not entitled to review the transcript of grand jury
proceedings “unless the ends of justice require it and there is a showing by the
defense that a particularized need for disclosure exists which outweighs the need
for secrecy.” State v. Greer (1981),

66 Ohio St.2d 139

20 O.O.3d 157

420 N.E.2d 982

, paragraph two of the syllabus. A particularized need is established
“when the circumstances reveal a probability that the failure to provide the grand
jury testimony will deny the defendant a fair trial.” State v. Sellards (1985),

17 Ohio St.3d 169

, 173, 17 OBR 410,

478 N.E.2d 781

. Determining whether a
particularized need exists is a matter within the trial court’s discretion. Greer, 66
Ohio St.2d at 148.
{¶ 67} Fry did not request disclosure of grand jury evidence. However, in
a pretrial motion, Fry made a Brady request for exculpatory evidence. See Brady
v. Maryland (1963),

373 U.S. 83

, 87,

83 S.Ct. 1194

10 L.Ed.2d 215

 (due process
requires that the prosecution provide defendants with any evidence that is
favorable to them whenever that evidence is material to their guilt or punishment).
15
SUPREME COURT OF OHIO
{¶ 68} Fry claims that the state violated Brady by failing to provide
evidence presented before the grand jury that supported his indictment for lesser
offenses than aggravated murder in Counts One and Two.              Fry claims that
evidence of lesser intent must have been presented to the grand jury for it to find
probable cause to indict on the lesser charges of murder, involuntary
manslaughter, and aggravated burglary in Counts Three, Four, and Five. Fry
claims that evidence of his lesser intent would have helped show that he did not
intend to kill Hardison when he entered her daughter’s house.
{¶ 69} Fry’s assertion that the grand jury considered favorable or
exculpatory evidence in returning the indictment on aggravated murder and lesser
offenses is totally speculative. The trial court did not abuse its discretion in
finding that this unsubstantiated claim failed to establish a particularized need for
such evidence. See State v. Hancock,

108 Ohio St.3d 57

2006-Ohio-160

840 N.E.2d 1032

, ¶ 71-72; State v. Benge (1996),

75 Ohio St.3d 136

, 145,

661 N.E.2d 1019

; State v. Davis (1988),

38 Ohio St.3d 361

, 365,

528 N.E.2d 925

.
5. Competency of child witness (Proposition of Law IV)
{¶ 70} Fry argues that the trial court abused its discretion in allowing six-
year-old Jasown Bivins to testify.
{¶ 71} Evid.R. 601 provides: “Every person is competent to be a witness
except: (A) * * * children under ten years of age, who appear incapable of
receiving just impressions of the facts and transactions respecting which they are
examined, or of relating them truly.”
{¶ 72} The trial court conducted a voir dire examination of Jasown to
determine his competence to testify. In making this determination, the court
considered “(1) the child’s ability to receive accurate impressions of fact or to
observe acts about which he or she will testify, (2) the child’s ability to recollect
those impressions or observations, (3) the child’s ability to communicate what
was observed, (4) the child’s understanding of truth and falsity, and (5) the child’s
16
January Term, 2010
appreciation of his or her responsibility to be truthful.” State v. Frazier (1991),

61 Ohio St.3d 247

574 N.E.2d 483

, syllabus.
{¶ 73} Jasown was six years old when he testified but five years old when
he witnessed the killing of Hardison. During the interview to determine his
competence, Jasown was able to relate his name and age and the names and ages
of his brother and sister. He understood that he was in court to talk about what
happened to his grandmother. Jasown showed that he knew what it meant to tell
the truth and stated that if he told a lie, he would get into trouble and be grounded.
Jasown stated that he would tell the truth about what he saw when his
grandmother was “hurt.”
{¶ 74} Following voir dire, the trial court determined that Jasown was
competent to testify regarding the events of July 31, 2005. Fry argues that the
trial court abused its discretion because voir dire examination showed that Jasown
was unable to distinguish right from wrong and could not tell the difference
between the truth and a lie.
{¶ 75} In support of this argument, Fry states that Jasown showed that he
did not understand the difference between telling the truth and telling a lie when
he was asked, “What does that mean if you promise to tell the truth in front of
God, and the Judge, and the Court,” and Jasown answered, “[A] lie.” Fry argues
that Jasown also demonstrated his incompetence when asked whether he knew the
difference between right and wrong, and Jasown shook his head “no.” Fry also
points out that Jasown improperly raised his left hand when the judge asked him
to raise his right hand to take a practice oath. Finally, Fry asserts that Jasown’s
attempt to explain the difference between telling the truth and telling a lie shows
that he did not understand the difference.
{¶ 76} A child may be competent to testify even though the child is unable
to recollect some facts or initially does not recognize the concept of truth, so long
as other answers demonstrate that the child can perceive and recall generally and
17
SUPREME COURT OF OHIO
understands the concept of truthfulness. See State v. Anderson,

154 Ohio App.3d 789

2003-Ohio-5439

798 N.E.2d 1155

, ¶ 62 (six-year-old witness competent
even though she answered some questions wrong). Even though Jasown had
difficulty answering some questions, his follow-up responses to other questions
showed that he knew the difference between truth and falsity and understood that
he should tell the truth. See State v. McNeill (1998),

83 Ohio St.3d 438

, 442-443,

700 N.E.2d 596

. For example, Jasown demonstrated this understanding near the
end of voir dire:
{¶ 77} “THE COURT: What does it mean to tell the truth?
{¶ 78} “MR. BIVINS: If my friends told my mom something and, um,
and, um, if I — and I had something, and I went to go show my mom, that’s not a
lie.
{¶ 79} “THE COURT: Okay. And, again, if you tell a lie, you said you
get into trouble? You get grounded?
{¶ 80} “MR. BIVINS: Yes.
{¶ 81} “THE COURT: Is it right to tell the truth?
{¶ 82} “MR. BIVINS: Yes.
{¶ 83} “THE COURT: Is it right to tell a lie?
{¶ 84} “MR. BIVINS: No.
{¶ 85} “THE COURT: Will you be able to talk to us later out in the
courtroom and tell us the truth about what you saw the day your grandmother was
hurt?
{¶ 86} “MR. BIVINS: Yes.”
{¶ 87} Jasown’s competence is adequately demonstrated on the record.
The trial court did not abuse its discretion in finding Jasown competent.
6. Other-Acts Evidence (Proposition of Law V)
{¶ 88} Fry first argues that evidence of his prior convictions for domestic
violence and arson were improperly admitted. During its case-in-chief, the state
18
January Term, 2010
offered into evidence Fry’s three prior convictions for domestic violence and one
prior conviction for arson of the dwelling of a family or household member. The
defense objected. The state responded that the convictions were admissible to
establish an element of the domestic-violence charges in Counts Four and Five.
The trial court overruled the defense objection, but excluded Fry’s 1988
conviction for domestic violence.
{¶ 89} A violation of R.C. 2919.25(A), the domestic-violence statute, is a
first-degree misdemeanor.      R.C. 2919.25(D)(2).      A prior domestic-violence
conviction raises a later offense to a fourth-degree felony. R.C. 2919.25(D)(3).
Two or more domestic-violence convictions elevate a later offense to a third-
degree felony. R.C. 2919.25(D)(4). During the admission of the state’s evidence,
the defense objected to the introduction of more than two convictions. The trial
court sustained the objection and excluded Fry’s 1992 arson conviction.
{¶ 90} Where a prior conviction elevates the degree of a subsequent
offense, the prior conviction is an essential element that the state must prove
beyond a reasonable doubt. State v. Henderson (1979),

58 Ohio St.2d 171

, 173,

12 O.O.3d 177

389 N.E.2d 494

.         Thus, Fry’s two prior felony convictions
elevated the current domestic-violence charges to third-degree felonies and were
properly admitted. See State v. Day (1994),

99 Ohio App.3d 514

, 517,

651 N.E.2d 52

; State v. Torres, 6th Dist. No. WD-98-049,

1999 WL 173980

, *3; State
v. Russell, 12th Dist. No. CA-98-02-018,

1998 WL 778312

, *2.
{¶ 91} The trial court also provided the jury with the following limiting
instructions: “You cannot, absolutely under any circumstances, consider these
convictions for any other reason except to demonstrate that they are elements of
the crime of domestic violence that the State must prove to you beyond a
reasonable doubt.” During the guilt-phase jury charge, the trial court repeated
similar instructions. Accordingly, Fry’s first claim lacks merit.
19
SUPREME COURT OF OHIO
{¶ 92} Second, Fry argues that the trial court erred in permitting Officer
Michael Rinn to testify about the “cycle of violence,” thereby implying that Fry is
a habitual batterer. During preliminary inquiry into his qualifications, Rinn was
asked whether he had received instruction about “the cycles of violence.” The
trial court sustained a defense objection to this line of questioning, and Rinn was
asked no further questions on the topic. Thus, no improper evidence was elicited
during Rinn’s testimony.
{¶ 93} Third, Fry argues that Donnel Juersivich, the victim-assistance
advocate, improperly testified about the “cycle of violence” in Hardison’s
relationship with Fry.      “ ‘Generally, battered woman syndrome testimony is
relevant and helpful when needed to explain a complainant’s actions, such as
prolonged endurance of physical abuse accompanied by attempts at hiding or
minimizing the abuse, delays in reporting the abuse, or recanting the allegations of
abuse.’ ” State v. Haines,

112 Ohio St.3d 393

2006-Ohio-6711

860 N.E.2d 91

, ¶
44, quoting People v. Christel (1995),

449 Mich. 578

, 580,

537 N.W.2d 194

.
Here, testimony about the “cycle of violence” was relevant in explaining
Hardison’s actions, such as talking to Fry twice on the phone on the day of his
arrest, obtaining money to post bail, and asking the judge to drop the case. In
addition, the defense was allowed to cross-examine Juersivich on these incidents
to suggest that Hardison had not felt abused. Thus, Juersivich’s testimony was
proper.
{¶ 94} Fourth, Fry argues that the state improperly presented evidence that
the apartment of Nikita Knox, Hardison’s daughter, had been burglarized and
ransacked twice during July 2005, but that the mother-daughter relationship had
not deteriorated during this time. Fry claims that Knox’s testimony implied that
Fry had committed the break-ins and thefts. However, the defense failed to object
to such evidence at trial and waived all but plain error. See State v. Childs,

14 Ohio St.2d 56

236 N.E.2d 545

, paragraph three of the syllabus.
20
January Term, 2010
{¶ 95} The state introduced testimony about the theft because Fry had told
police that when he was in jail, Hardison had broken into her daughter’s
apartment and had stolen her TV. Fry also indicated to the police that Hardison’s
theft of her daughter’s TV was a reason he pursued Hardison on July 31. During
his police statement, Fry also mentioned Hardison’s theft in explaining his actions
when he killed her. Fry said, “[W]hy did she hit me * * * what the hell was she
thinking * * * ? You done robbed me, you robbed your daughter, now you’re
getting cussed out about it, then you bust me in my head, what did you think was
gonna happen?” (Emphasis added.) Thus, Knox’s testimony was presented to
refute Fry’s claims that Hardison had stolen the TV from her home. None of her
testimony suggested that Fry had committed the break-ins. Accordingly, no plain
error occurred in introducing such evidence.
7. Admissibility of Hardison’s statements (Proposition of Law VI)
{¶ 96} Fry argues that the admission of Hardison’s statements to a police
officer, a nurse, and a victim’s advocate violated his Sixth Amendment right to
confrontation as set forth in Crawford v. Washington (2004),

541 U.S. 36

.
a. Hardison’s statement to Officer Hackathorn
{¶ 97} Police arrived at Fry’s apartment building on July 18, 2005,
following a call reporting a domestic disturbance. They heard screaming coming
from inside the apartment. Fry was placed in handcuffs and was taken to a
cruiser.
{¶ 98} Officer Matthew Hackathorn testified that Hardison was crying and
shaking, as if a traumatic event had just occurred. He could see that she had
“some redness to the right side of her face, some swelling that started.”
Hackathorn determined that Hardison did not need emergency medical assistance.
He then asked, “Can you tell me what happened?” Hardison reported that she and
Fry had argued. He then struck her in the face about ten times. While she was on
21
SUPREME COURT OF OHIO
the ground, crying, Fry said, “If you don’t shut up, I am going to kill you.” He
then picked up a leather punch from the dresser and showed it to her.
{¶ 99} Hackathorn spent 15 minutes talking to Hardison. During that
time, Hardison also prepared a written statement describing what had happened.
The trial court admitted Hardison’s oral statement as an excited utterance and
made findings in support of the ruling. The trial court did not admit Hardison’s
written statement..
{¶ 100} Evid.R. 803(2) allows a hearsay statement to be admitted into
evidence if it relates “to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.” Hackathorn
testified that Hardison was crying and shaking uncontrollably when she talked to
Hackathorn. Their discussion occurred minutes after police had arrived at the
scene, and the police had heard her screams outside the apartment building. The
evidence reflects that Hardison’s statements were made while she was still
frightened and under the stress of a startling event and were not the product of
reflective thought. See State v. Leonard,

104 Ohio St.3d 54

2004-Ohio-6235

818 N.E.2d 229

,¶ 94, 96. Thus, the evidence supports admissibility of Hardison’s
statement as an excited utterance.
{¶ 101} The trial court must also determine whether Hardison’s statements
were testimonial. Crawford,

541 U.S. at 52

, 124 S.Ct.1354,

.
Improper admission of testimonial statements may violate the Sixth Amendment
right to confrontation.

Id. at 68

. Crawford declined to comprehensively define the
term “testimonial,” opining, “Whatever 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.”

 (Emphasis added.)
{¶ 102} In the consolidated cases of Davis v. Washington and Hammon v.
Indiana (2006),

547 U.S. 813

126 S.Ct. 2266

165 L.Ed.2d 224

, the United States
Supreme Court distinguished between police interrogations that concern an
22
January Term, 2010
ongoing emergency and those that relate to past criminal conduct. In considering
whether the statements in these cases were testimonial, the court formulated the
primary purpose test: “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

.
{¶ 103} Hammon also involved a victim’s statements to police officers
responding to a domestic-violence complaint after they had secured the scene.

Id. at 817-821

. The Supreme Court held that these statements were testimonial and
were barred by the Sixth Amendment.

Id. at 829-832

. In Hammon, the police had
questioned the victim about “possibly criminal past conduct.”

Id. at 829

. The
court stated that “there was no immediate threat” to the victim and “no emergency
in progress,” because the police had separated the abusive husband from his wife.

Id. at 829-830

. The court stated that when the officer questioned the victim, he
was “not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what
happened.’ ”

Id. at 830

. The court concluded that “[o]bjectively viewed, the
primary, if not indeed the sole, purpose of the interrogation was to investigate a
possible crime * * *.”

{¶ 104} As in Hammon, here there was no ongoing emergency, and
Hardison was no longer in any imminent danger when she talked to Hackathorn.
Fry had already been removed from the apartment and had been taken to the
cruiser.      Hackathorn’s primary purpose in interrogating Hardison was to
investigate a possible crime. Hardison’s statements related to past events and
23
SUPREME COURT OF OHIO
what happened rather than what was currently happening.                      Accordingly, her
statements were testimonial. 3
{¶ 105} However, the state claims that Fry forfeited his right to confront
Hardison because his intentional criminal act made her unavailable to testify. The
state argues that Hammon also recognized the doctrine of forfeiture by
wrongdoing, which means that the admission of Hardison’s unconfronted
statements did not violate the Confrontation Clause.

Id. at 833

126 S.Ct. 2266

165 L.Ed.2d 224

.
{¶ 106} But in Giles v. California (2008), __ U.S. __,

128 S.Ct. 2678

,
2683,

171 L.Ed.2d 488

, the court recognized that this doctrine of forfeiture by
wrongdoing applies only “when the defendant engaged in conduct designed to
prevent the witness from testifying.” (Emphasis sic.)

 Giles also states that
“the rule * * * makes plain that unconfronted testimony would not be admitted
without a showing that the defendant intended to prevent a witness from
testifying.” (Emphasis sic.)

Id. at 2684

.
{¶ 107} In Giles, the defendant had killed his former girlfriend. At the
defendant’s murder trial, the court admitted the victim’s statements to a policeman
during a domestic-violence call three weeks before the shooting.

 at 2681-
2682. Although the court vacated Giles’s conviction, it held that the forfeiture
doctrine would apply in many domestic-violence cases where the victim’s
3. Several jurisdictions have found that victim statements to the police in similar situations are
testimonial. See People v. Cage (2007),

40 Cal.4th 965

, 985,

155 P.3d 205

56 Cal.Rptr.3d 789

,
cert. denied (2007),

552 U.S. 1023

128 S.Ct. 612

169 L.Ed.2d 395

 (assault victim’s statements to
police were testimonial because assailant and victim were separated, and victim “was in no danger
of further violence as to which contemporaneous police intervention might be required”);
Commonwealth v. Galicia (2006),

447 Mass. 737

, 745-746,

857 N.E.2d 463

 (victim’s statements
to police describing assault that occurred less than five minutes earlier were testimonial because
victim and defendant were separated); Zapata v. State (Tex.App.2007),

232 S.W.3d 254

, 260
(victim’s statements to police about recent assault were testimonial because she was separated
from defendant, and there was no evidence of an “ongoing conflict”). Compare United States v.
Arnold (C.A.6, 2007),

486 F.3d 177

, 189-192 (victim’s statement to police about an earlier threat
to kill her was nontestimonial because defendant was armed and in the vicinity).
24
January Term, 2010
statement was introduced after the victim was killed. “Acts of domestic violence
often are intended to dissuade a victim from resorting to outside help, and include
conduct designed to prevent testimony to police officers or cooperation in
criminal prosecutions. Where such an abusive relationship culminates in murder,
the evidence may support a finding that the crime expressed the intent to isolate
the victim and to stop her from reporting abuse to the authorities or cooperating
with a criminal prosecution – rendering her prior statements admissible under the
forfeiture doctrine.” Id. at 2693.
{¶ 108} Similarly, the record demonstrates that Fry’s killing of Hardison
was “designed” to prevent her from testifying against him in any future criminal
proceedings. While in jail and awaiting a court hearing on assault charges, Fry
made several phone calls to Hardison and his mother about the case. He began
coercing Hardison to drop the charges against him and threatening her if she did
not. After Fry received the paperwork that Hardison had signed against him, Fry
told her, “You don’t know me.” He said, “I got two of them under my belt * * *
toe tags.” He then told Hardison to “fix this, fix this.”
{¶ 109} The jury also found Fry guilty of Specification Two of Count One
for purposely killing Hardison to prevent her testimony in another criminal
proceeding or killing her in retaliation for her testimony in any criminal
proceeding under R.C. 2929.04(A)(8).           Thus, the jury’s verdict supports the
conclusion that Fry forfeited his right to confront Hardison’s statement to police.
Based on the foregoing, Hardison’s statements to Hackathorn were properly
admitted.
b. Hardison’s statement to Veney
{¶ 110} On July 18, Hardison went to Akron City Hospital for medical
treatment following her assault. Amy Veney, a nurse examiner with Developing
Options for Violent Emergencies (“DOVE”), treated Hardison. During the course
of her treatment, Veney asked Hardison a series of questions about what
25
SUPREME COURT OF OHIO
happened. Trial counsel objected to the admission of Veney’s testimony about
what Hardison told her. The trial court overruled that objection on the basis that
Hardison’s statements were for the purposes of medical treatment. See Evid.R.
803(4).
{¶ 111} Veney testified that Hardison told her she was the girlfriend of
Clarence Fry, the person who hurt her. Hardison said that she had been hit in the
jaw and face, grabbed by the wrist, and strangled. Hardison also said that Fry had
threatened her with some kind of “poker or ice pick” and had told her “he was
going to stab” her and “kill” her. In further describing what happened, Hardison
reported that “Clarence came into the house ‘talking crazy’ and that he just
‘started hitting on’ ” her.
{¶ 112} Fry argues that Hardison’s statements to Veney were testimonial
statements admitted in violation of the Sixth Amendment right to confrontation.
We reject this argument on the basis of State v. Stahl,

111 Ohio St.3d 186

, 2006-
Ohio-5482,

855 N.E.2d 834

.         In Stahl, a rape victim had made statements
identifying the person who raped her during an interview conducted by a nurse at
a DOVE unit. Id. at ¶ 5-6. Stahl held that the victim’s statement to the DOVE
nurse was nontestimonial. Id. at ¶ 48. In reaching that conclusion, this court
adopted the “objective witness” test, which provides: “For Confrontation Clause
purposes, a testimonial statement includes one made ‘under circumstances which
would lead an objective witness to reasonably believe that the statement would be
available for use at a later trial.’ (Crawford v. Washington (2004),

541 U.S. 36

,
52,

, followed.) * * * In determining whether a
statement is testimonial for Confrontation Clause purposes, courts should focus 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.”

 at paragraphs one and two of the syllabus.
26
January Term, 2010
{¶ 113} In applying the objective-witness test, Stahl noted that the victim
had already given a statement to the police identifying the perpetrator. This court
stated that the victim “could reasonably have assumed that repeating the same
information to a nurse or other medical professional served a separate and distinct
medical purpose.” Id. at ¶ 46. Stahl concluded that the victim’s statement to the
DOVE nurse was not made “ ‘under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial,’ because the declarant had previously made the identifying statement to
the police.” Id., quoting Crawford,

541 U.S. at 53