State v. Scott , 2021 Ohio 3427 ( 2021 )

[Cite as State v. Scott, 2021-Ohio-3427.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200385
C-200403
Plaintiff-Appellee, : TRIAL NOS. B-1805183
B-1904164
vs. :
CURTIS SCOTT, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-200385; Appeal Dismissed in
C-200403
Date of Judgment Entry on Appeal: September 29, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Angela Glaser, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Curtis Scott was indicted for kidnapping with
firearm specifications, abduction, felonious assault in violation of R.C. 2903.11(A)(2)
with firearm specifications, having a weapon while under a disability, and felonious
assault in violation of 2903.11(A)(1) in the case numbered B-1904164. After trial, he
was acquitted of the R.C. 2903.11(A)(2) felonious-assault charge, having a weapon
while under a disability, and the firearm specifications to the kidnapping count. He
was convicted of kidnapping, abduction, and the R.C. 2903.11(A)(1) felonious-assault
charge. In an unrelated case, numbered B-1805183, Scott pled guilty to having a
weapon while under a disability.
{¶2} He has appealed, arguing in five assignments of error that (1) the trial
court erred in admitting an out-of-court statement of a witness taken by a 911
operator; (2) the trial court erred in failing to instruct the jury on the lesser-included
offense of assault; (3) the felonious-assault conviction was supported by insufficient
evidence; (4) the kidnapping conviction was against the manifest weight of the
evidence; and (5) the trial court erred when it sentenced him for kidnapping rather
than abduction.
{¶3} The appeal numbered C-200403 relates to Scott’s guilty plea and
conviction in the case numbered B-1805183 for having a weapon while under a
disability. He has not presented any assignments of error or argument regarding
that case. Therefore, we dismiss the appeal numbered C-200403. In the appeal
numbered C-200385, we overrule all assignments of error and affirm the judgment
of the trial court.
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Factual Background
{¶4} Brenda Luper testified that at approximately 4:00 a.m. on July 11,
2019, she and Scott, her boyfriend at the time, got into an argument in her
apartment. She left the apartment, but Scott chased after her. He caught up with her
in the hallway of the apartment building.
{¶5} The state played surveillance video from the hallway that captured
what happened next. The video is approximately eight minutes long. Luper fell to
the ground while running away from Scott. He grabbed her by her hair and punched
her in the face. He began dragging her by her hair back toward the apartment as she
struggled to get free. He punched her in the face again. She got free and ran away,
but Scott ran her down at the end of the hallway. For approximately two minutes,
Luper laid on the ground while Scott alternated between talking to her and talking to
a neighbor standing off camera.
{¶6} Then, while Luper was sitting against the wall, Scott kicked her in the
head four times. Luper rolled to the middle of the hallway and Scott began hitting
her with his fists. He grabbed her by her hair and dragged her back toward the
apartment, punching her in the face and stomping on her head multiple times along
the way. He picked her up and “body slammed” her onto the ground. Scott punched
her several more times and then grabbed her by her hair and forced her back in the
apartment.
{¶7} Luper testified that once they reentered the apartment, Scott let go of
her and turned to lock the door. She ran to the bathroom and closed the door. Scott
attempted to push the door open, but she braced her feet against the door and her
back against the toilet, which prevented him from opening the door. She testified
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that Scott threatened her repeatedly. He told her that he would bash her teeth out
with a liquor bottle, shave her “Mohawk,” pistol whip her, and shoot her in the face.
Throughout the ordeal, he would come back to the bathroom every ten to 15 minutes
and threaten her. She testified that several hours after she barricaded herself in the
bathroom, he shot through the door and the bullet narrowly missed her, passing
approximately an inch above her shoulder.
{¶8} There were no windows in the bathroom and Luper did not have her
cell phone or watch on her. She testified that she heard the apartment door open and
close several times, but she did not know whether Scott had left the apartment. She
opened the bathroom door at one point and did not see Scott in the apartment, but
she did not leave the bathroom because she was afraid he might be hiding.
{¶9} Luper formulated an escape plan. She testified that she took down her
shower curtain rod and “secured” it against the door in order to keep the door from
moving. She ripped out the inside of her medicine cabinet with the intention of
climbing through to the other side of the wall. She was cautious about alerting Scott,
so it took her a long time to break through the medicine cabinet. She decided she
could not climb through the wall, but she heard people talking in her neighbor’s
bathroom. She eventually got her neighbor’s attention by using part of her toilet
paper dispenser to tap on her neighbor’s medicine cabinet, which was on the other
side of the hole she had created. She told her neighbor that she had been locked in
the bathroom and that Scott had a gun and was trying to kill her.
{¶10} The neighbor left and came back a few minutes later with a man, to
whom Luper repeated her story. The man called the police. The state introduced a
recording of the 911 call. On the call, you can hear the female neighbor, her male
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OHIO FIRST DISTRICT COURT OF APPEALS
friend (“Kobe Bryant”), and the dispatcher. Bryant and the neighbor told the
dispatcher that Luper was tapping on their mirror and telling them that Scott has a
gun and that she’s trapped in the bathroom.
{¶11} Police officers arrived on scene at 7:43 p.m., approximately 15 hours
after Luper had locked herself in the bathroom. Luper was taken to a hotel that
night, but was allowed to return to the apartment the next day. She showered in the
apartment and conducted an interview with a news reporter she had called. Luper
testified that she received multiple calls from Scott on July 12 and 13 asking her to
retrieve certain possessions for him, including his firearm, and bring them to a
mutual friend. Luper testified that on July 13, after Scott told her where the firearm
was hidden, she informed Detective Benjamin Miller. Miller testified that police
recovered the firearm and a bullet from the wall in the bathroom. They determined
that the bullet had been fired by that firearm. But they could not determine to whom
the firearm belonged because the crime scene had been left unsecured.
{¶12} After being arrested, Scott was interviewed by detectives and an audio
recording of the interview was played at trial. He admitted to assaulting Luper but
denied firing a gun at her or kidnapping her.
First Assignment of Error
{¶13} In his first assignment of error, Scott contends that the trial court
erred in admitting the recording of the 911 call because the recording was hearsay.
{¶14} Defense counsel objected to the call’s admission at trial, so we review
for an abuse of discretion. HSBC Bank USA, Natl. Assn. v. Gill, 2019-Ohio-2814, 139
N.E.3d 1277, ¶ 10 (1st Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Evid.R. 802 prohibits the admission of hearsay. Evid.R. 801(C) defines
hearsay as “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.”
{¶16} Evid.R. 803(1) provides an exception to the hearsay rule for present
sense impressions. A present sense impression is “A statement describing or
explaining an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter unless circumstances indicate lack of
trustworthiness.” Id.Generally, statements that fit within the present sense impression
exception are viewed as trustworthy because: (1) there is no loss of
memory; (2) there is little or no time for calculated misstatement; and (3)
they are usually made to one who has equal opportunity to observe and
check misstatements.
2 Wharton’s Criminal Evidence, Section 6:19 (15th Ed.2020) (discussing Fed.R.Evid.
803(1)).
{¶17} Although a 911 dispatcher is unable to verify the declarant’s
statements, Ohio courts have routinely held that 911 calls are admissible as present
sense impressions. “911 calls are usually admissible under the excited utterance or
the present sense impression exception to the hearsay rule.” State v. Smith, 2017-
Ohio-8558, 99 N.E.3d 1230, ¶ 37 (1st Dist.), citing State v. Crowley, 2d Dist. Clark
No. 2009 CA 65, 2009-Ohio-6689, *5 (“the key to the statement’s trustworthiness is
the spontaneity of the statement, either contemporaneous with the event or
immediately thereafter. By making the statement at the time of the event or shortly
thereafter, the minimal lapse of time between the event and statement reflects an
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OHIO FIRST DISTRICT COURT OF APPEALS
insufficient period to reflect on the event perceived—a fact which obviously detracts
from the statement’s trustworthiness.”); see State v. Steward, 2020-Ohio-4553, 159
N.E.3d 356, ¶ 48 (10th Dist.), quoting State v. Rose, 8th Dist. Cuyahoga No. 89457,
2008-Ohio-1263, ¶ 42 (“Precedent overwhelmingly supports the conclusion that 911
calls are admissible either as excited utterances or present sense impressions.”).
{¶18} During the 911 call, Bryant told the dispatcher, “I can hear my
neighbor in my restroom she’s saying please call 911, help, I swear to God on my kids,
so I just called, I think she’s being held captive, I don’t know, she said, she’s tapping
and stuff on the door * * * I can hear her, she’s in there tapping on our wall.” The
neighbor spoke into the phone and said “she saying he got a gun, bust the door down,
he’s holding her hostage.” Because the neighbor and Bryant were relaying Luper’s
statements and their perceptions of the event as it was unfolding, their statements
qualify as present sense impressions.1
{¶19} Scott contends that the statements were nonetheless inadmissible
because the emergency nature of the situation had passed, and therefore, the
statements were testimonial in nature. The neighbor and Bryant did not explain a
past event. Rather, they described a present, emergency situation. Thus, their
statements were nontestimonial. See Smith, 2017-Ohio-8558, 99 N.E.3d 1230, at ¶
37 (“Because 911 calls seeking police assistance are not testimonial in nature, the
Confrontation Clause does not apply.”); State v. McGee, 1st Dist. Hamilton No. C-
150496, 2016-Ohio-7510, ¶ 17; Davis v. Washington, 547 U.S. 813, 827-828, 126
S.Ct. 2266, 165 L.Ed.2d 224 (2006) (holding that statements made during a 911 call
1 Although not raised by Scott on appeal, Luper’s statements arguably constitute hearsay within
hearsay. See Evid.R. 805. But her statements are admissible as excited utterances. See Evid.R.
803(2). Therefore, there is no violation of Evid.R. 805.
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were nontestimonial because the declarant was describing an ongoing emergency
and the purpose of the 911 operator’s questions was to resolve the present
emergency).
{¶20} Accordingly, Scott’s first assignment of error is overruled.
Second Assignment of Error
{¶21} In his second assignment of error, Scott contends that the trial court
erred in failing to instruct the jury on the lesser-included offense of assault for the
R.C. 2903.11(A)(1) felonious-assault count. But the record shows that the instruction
was given by the trial court. The second assignment of error is overruled.
Third Assignment of Error
{¶22} In his third assignment of error, Scott contends that his felonious-
assault conviction was not supported by sufficient evidence.
{¶23} The test for determining the sufficiency of the evidence is whether
“after viewing the probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt.” State v.
MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It is a question
of law for the court to determine, the court is not to weigh the evidence. MacDonald
at ¶ 12. “When evidence is susceptible to more than one construction, a reviewing
court must give it the interpretation that is consistent with the judgment.” In re J.C.,
1st Dist. Hamilton No. C-180493, 2019-Ohio-4027, ¶ 20.
{¶24} Scott was convicted of felonious assault in violation of R.C.
2903.11(A)(1), which prohibits knowingly causing serious physical harm to another.
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OHIO FIRST DISTRICT COURT OF APPEALS
Scott argues that although Luper suffered some physical harm, the state failed to
prove that she suffered serious physical harm.
“Serious physical harm to persons” means any of the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(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 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. 2901.01(A)(5).
{¶25} The degree of harm required to establish serious physical harm “is not
an exact science, particularly when the definition includes terms such as
‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’ ” State v. Crossty, 2017-Ohio-
8382, 99 N.E.3d 1048, ¶ 21 (1st Dist.), quoting State v. Irwin, 7th Dist. Mahoning
No. 06 MA 20, 2007-Ohio-4996, ¶ 37. “The extent or degree of a victim’s injuries is
‘normally a matter of the weight, rather than the sufficiency of the evidence.’ ” Id.{¶26} Serious physical harm has been found where a victim sustained a
bloody cut and significant swelling to the face, even when there was no evidence that
stitches were required. Crossty at ¶ 22. Extensive bruising can constitute serious
physical harm because a bruise may satisfy the statutory requirement for temporary
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OHIO FIRST DISTRICT COURT OF APPEALS
serious disfigurement. Id. at ¶ 23. In Crossty, the court found sufficient evidence of
serious physical harm where there was extensive bruising and swelling on the
victim’s head, arms, hands, and back, deep abrasions on her hand, a gash on her
scalp, and large swelling and a gash under her deeply blackened eye that required
medical tape to close the wound. Id. at ¶ 24.
{¶27} In State v. Daniels, 14 Ohio App.3d 41, 41-42, 469 N.E.2d 1338 (1st
Dist.1984), this court held that there was sufficient evidence of serious physical harm
where the victim suffered a broken nose and injuries to her back, hands, and leg, was
treated at a hospital for her injuries, experienced pain and was unable to sleep for
several nights because of pain resulting from the contact of her swollen head and face
to the bedding, suffered recurring headaches from the time of the attack to the date
of trial, a period of three and a half months, and continued to use Tylenol as pain
medication. In State v. Sheppard, 1st Dist. Hamilton No. C-000553, 2001 WL
1219765, *2 (Oct. 12, 2001), this court held that there was sufficient evidence of
serious physical harm where the evidence showed welts on the victim’s face and
head, blood spots in her eyes, cuts on the inside of her mouth, knots on her head, and
a laceration on her right index finger, and, as a result of her injuries, the victim
missed four days of work.
{¶28} “Where injuries to the victim 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.
2901.01(A)(5).” State v. Carter, 3d Dist. Seneca No. 13-18-13, 2018-Ohio-4468, ¶ 28,
quoting State v. Montgomery, 8th Dist. Cuyahoga No. 102043, 2015-Ohio-2158, ¶
12; see State v. Boscarino, 2d Dist. Montgomery No. 25580, 2014-Ohio-1858, ¶ 15.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} “[C]ourts have repeatedly stated that ‘where the assault causes a bone
fracture, the element of serious physical harm is met.’ ” Carter at ¶ 29, quoting
Montgomery at ¶ 13; see State v. Eichelbrenner, 1st Dist. Hamilton No. C-110431,
2013-Ohio-1194, ¶ 33 (holding that there was sufficient evidence of serious physical
harm where the victim suffered a broken collarbone).
{¶30} Loss of consciousness, concussions, headaches, and head trauma may
also provide sufficient evidence of serious physical harm. See State v. Battles, 8th
Dist. Cuyahoga No. 109265, 2021-Ohio-310, ¶ 17.
{¶31} Luper described her injuries at trial. She testified that as a result of the
assault she had a cut under her eye, the right side of her face was swollen, she had
scratches on her neck and bruises and abrasions on her knees and hip, her ring
finger on her left hand “was really big and swollen, and it was throbbing and [she]
couldn’t bend it.” She testified that the pain in her head and side worsened to the
point where she went to the hospital on July 17, 2019. She testified, “It was hard to
sleep. Headaches coming and going. It was more frustrating than anything.” She was
diagnosed with a fractured finger and was given a finger cast to wear. At the time of
trial, she was still sometimes experiencing pain in her finger.
{¶32} The state admitted photographs of Luper’s injuries and her hospital
records. The records described Luper’s finger injury upon admission as a “displaced
fracture of distal phalanx of left ring finger, initial encounter for closed fracture.” The
records described the status of her finger injury during her July 31, 2019, follow-up
visit as “left ring finger bony mallet,” but also stated that x-rays of her left hand
showed “displaced, intra-articular distal phalanx avulsion fracture.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} Taken in the light most favorable to the state, Luper experienced
swelling and bruising to her face and head, headaches, a fractured finger, and
bruising/abrasions to her hip and knees. The pain worsened over the six days
between the assault and her admission to the hospital, and the pain kept her awake
at night. The state presented sufficient evidence that Luper’s injuries resulted in
“physical harm that involve[d] acute pain of such duration as to result in substantial
suffering or that involve[d] any degree of prolonged or intractable pain.”
{¶34} The third assignment of error is overruled.
Fourth Assignment of Error
{¶35} In his fourth assignment of error, Scott contends that his kidnapping
conviction was against the manifest weight of the evidence.
{¶36} In reviewing a claim that a conviction is against the manifest weight of
the evidence, we review the record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether the trier of fact, in
resolving conflicts in the evidence, “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be overturned.” Martin, 20 Ohio
App.3d at 175, 485 N.E.2d 717. Reversal of a conviction and a grant of a new trial
should only be done in the “exceptional case in which the evidence weighs heavily
against the conviction.” Id.{¶37} “The trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given to the evidence presented.” State v. Carson, 1st
Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16.
{¶38} As relevant here, R.C. 2905.01(A) provides,
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OHIO FIRST DISTRICT COURT OF APPEALS
No person, by force, threat, or deception, or, in the case of a victim under
the age of thirteen or mentally incompetent, by any means, shall remove
another from the place where the other person is found or restrain the
liberty of the other person, for any of the following purposes:
***
(3) To terrorize, or to inflict serious physical harm on the victim or
another.
{¶39} Scott argues that Luper voluntarily returned to her apartment from the
hallway and then restrained herself in the bathroom. His argument is clearly
contradicted by the surveillance video, which showed Luper being chased down the
hallway and beaten and dragged by her hair back to the apartment. Once they were
inside, Scott locked the apartment door. Unable to escape, Luper sought safety in the
bathroom. She testified that she remained in the bathroom because Scott continued
to threaten her and she was afraid that if she opened the door he would kill her.
{¶40} Scott’s use of force and threats restrained Luper in the bathroom. See
State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 60 (4th Dist.) (holding that the
defendant had restrained a fellow prison inmate by telling him that if he sought
medical attention he would be assaulted again).
{¶41} Scott argues that he left the apartment multiple times and Luper could
have exited from the bathroom but chose not to. Luper testified that although she
could hear the apartment door open and close several times she did not know for
certain that Scott had left the apartment, and she was afraid he may have been trying
to trick her into coming out of the bathroom.
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{¶42} Nothing presented by Scott leads us to believe that the jury clearly lost
its way and created a manifest miscarriage of justice. The fourth assignment of error
is overruled.
Fifth Assignment of Error
{¶43} At the sentencing hearing, the court merged the kidnapping and
abduction counts and, without any input from the state, sentenced Scott for
kidnapping. “The General Assembly has made clear that it is the state that chooses
which of the allied offenses to pursue at sentencing, and it may choose any of the
allied offenses.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,
¶ 20.
{¶44} Scott argues that the court erred in unilaterally sentencing him for
kidnapping because the state made no election at the sentencing hearing. The Tenth
District rejected this argument in State v. Cruz-Altunar, 10th Dist. Franklin No.
18AP-951, 2019-Ohio-2298, ¶ 21. “The absence of an election by [the state] as to
which of the two murder charges [the state] wished to pursue for sentencing does not
implicate any constitutional right belonging to appellant.” Id. at ¶ 27. Therefore, the
trial court did not err to Scott’s prejudice when it chose the allied offense for which to
sentence him.
{¶45} The fifth assignment of error is overruled.
Conclusion
{¶46} The case numbered C-200403 is dismissed. In the case numbered C-
200385, we overrule all five assignments of error and affirm the judgment of the trial
court.
Judgment accordingly.
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OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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