State v. Scott, C-200385

2021-Ohio-3427

STATE OF OHIO, Plaintiff-Appellee, v. CURTIS SCOTT, Defendant-Appellant.

Nos. C-200385, C-200403

Court of Appeals of Ohio, First District, Hamilton

September 29, 2021

Hamilton County Court of Common Pleas Trial Nos. B-1805183 B-1904164

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee

Angela Glaser, for Defendant-Appellant.

OPINION

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.

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 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 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).

{¶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 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...