Time Sensitive: Court of Appeals of Ohio Affirms Admission of Excited Utterance in Domestic Violence Case

Similar to its federal counterpart, Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for

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.

Typically, this “excited utterance” exception is satisfied through evidence that a specific period of time passed between the startling event/condition and the declarant’s statement (e.g., the declarant called or sent a text message 5 minutes after seeing a shooting). But, as the recent opinion of the Court of Appeals of Ohio, Eighth District, noted in its recent opinion in Cleveland v. Amoroso, 2015 WL 178418 (Ohio App. 8th 2015), circumstantial evidence of the passage of time often suffices.

In Amoroso, Steven Amoroso was charged with domestic violence against his wife, Patricia. After he was convicted, Amoroso appealed, claiming that the trial court improperly allowed for the admission of his wife’s 911 call. Specifically, he claimed that the call was inadmissible hearsay that didn’t satisfy the excited utterance exception because the prosecution failed to establish how much time had passed between the alleged domestic violence and the call. In addressing this issue, the Court of Appeals began by noting the following:

In determining whether Patricia’s statements were excited utterances, we must review Officer D’Amico’s testimony regarding the statements and Patricia’s demeanor when he arrived at the scene. Patricia testified that she called the police right after Amoroso had punched her in her throat, pinned her up against the wall by her throat, and was holding onto her wrists. There is no evidence to indicate how long it was before Officer D’Amico had arrived at the scene. But Officer D’Amico testified that when he arrived, Patricia was “very upset,” and “sitting down on the stairs, crying.” Although Officer D’Amico did not see any visible injuries on Patricia, Patricia complained of wrist pain and throat pain.

These facts allowed the court to analogize the case before it to State v. Bennett, 1998 WL 820517 (Ohio App. 5th 1998), in which the court affirmed the admission of excited utterances without direct evidence concerning the passage of time because the “victim was crying, very upset, and complaining of pain in her right eye” when she made her statement. Specifically, the Amoroso court concluded that,

as in Bennett, we find that Officer D’Amico’s testimony was sufficient to establish that Patricia’s statements were made while she was still under the stress of the nervous excitement caused by the abuse. She was “very upset” and crying when Officer D’Amico arrived, telling him what had happened to her and complaining of being in pain. And there were no intervening circumstances. Thus, we find no abuse of discretion on the part of the trial court in allowing Officer D’Amico to testify as to Patricia’s statements to him when he arrived at the scene.

-CM