[Cite as State v. Scott,

.]

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.

2 OHIO FIRST DISTRICT COURT OF APPEALS

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

3 OHIO FIRST DISTRICT COURT OF APPEALS

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

4 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,

,

, ¶ 10 (1st Dist.).

5 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.”

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,

(1st Dist.), citing State v. Crowley, 2d Dist. Clark

No. 2009 CA 65,

, *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

6 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,

,

(10th Dist.), quoting State v. Rose, 8th Dist. Cuyahoga No. 89457,

(“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,

,

(“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,

; Davis v. Washington,

,

,

(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.

7 OHIO FIRST DISTRICT COURT OF APPEALS

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,

, quoting State

v. Martin,

,

(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,

.

{¶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.

8 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,

(1st Dist.), quoting State v. Irwin, 7th Dist. Mahoning

No. 06 MA 20,

. “The extent or degree of a victim’s injuries is

‘normally a matter of the weight, rather than the sufficiency of the evidence.’ ”

{¶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

9 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,

,

(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,

, *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,

,

quoting State v. Montgomery, 8th Dist. Cuyahoga No. 102043,

, ¶

12; see State v. Boscarino, 2d Dist. Montgomery No. 25580,

.

10 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,

(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,

.

{¶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.”

11 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,

,

. 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.”

{¶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,

.

{¶38} As relevant here, R.C. 2905.01(A) provides,

12 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,

,

(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.

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶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,

,

,

,

¶ 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,

. “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.

14 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.

15