[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Wilcox, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

             THE STATE OF OHIO, APPELLANT, v. WILCOX, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Wilcox, Slip Opinion No. 

.]
Criminal law—Confrontation Clause of Sixth Amendment to United States
        Constitution—Absent witness’s statements to law-enforcement officers
        captured on body-camera video that were given before defendant’s
        apprehension were nontestimonial because officers were responding to an
        ongoing emergency—Absent witness’s statements captured on body-camera
        video after defendant’s apprehension were testimonial, and admission of
        those statements violated defendant’s right to confrontation—Court of
        appeals’ judgment reversed and cause remanded.
    (No. 2023-1204—Submitted July 9, 2024—Decided December 10, 2024.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-220472,
                                      

.
                                   __________________
                             SUPREME COURT OF OHIO




       FISCHER, J., announced the judgment of the court, with an opinion joined
by DONNELLY and BRUNNER, JJ. STEWART, J., concurred in judgment only, with an
opinion. DEWINE, J., concurred in part and dissented in part, with an opinion joined
by KENNEDY, C.J., and HUFFMAN, J. MARY KATHERINE HUFFMAN, J., of the Second
District Court of Appeals, sat for DETERS, J.


       FISCHER, J.
       {¶ 1} We examine in this case whether the admission during a criminal trial
of statements captured on body-camera footage violated the defendant’s right to
confrontation. As explained below, we conclude that the initial statements in
question were nontestimonial, as the law-enforcement officer’s primary purpose at
that stage of the investigation was to address an emergency situation. The latter
statements, however, were testimonial, because they were made after the suspect
was apprehended and therefore were not given to assist in addressing an emergency
situation. We therefore reverse the judgment of the First District Court of Appeals
and remand the case to that court for it to determine whether the nontestimonial
statements were admissible under the Ohio Rules of Evidence and to conduct a
harmless-error analysis.
              FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 2} In August 2020, appellee, Quantez Wilcox, agreed to meet his ex-
girlfriend, Doniesha Monroe, near the public library in downtown Cincinnati. He
was seated in his parked car and was talking to her when they were approached by
Keshawn Turner, Monroe’s boyfriend at the time. Monroe and Turner quarreled.
During this argument, Wilcox testified, it appeared to Wilcox that Turner was trying
to pull a gun out of his holster, and in response, Wilcox pulled his own gun and shot
Turner. The record indicates that no one other than Monroe, Turner, and Wilcox
witnessed the shooting. Turner ultimately died from his gunshot wound.




                                         2
                                January Term, 2024




       {¶ 3} As Turner and Monroe attempted to flee the scene on foot, Wilcox
fled in his car. Approximately a block away from the scene of the shooting, a police
officer saw Wilcox’s vehicle run a red light, and he initiated a traffic stop. While
questioning Wilcox during the traffic stop, the officer received information on his
radio that Wilcox was the suspect in a shooting. The officer arrested Wilcox and
informed police dispatch that he had secured Wilcox in the back of his patrol
vehicle.
       {¶ 4} While the traffic stop was taking place, a police officer arrived at the
scene of the shooting and began questioning Monroe. The questioning was
recorded by the officer’s body camera. Monroe immediately identified Wilcox as
the shooter and gave the officer details about Wilcox to help locate him.
Approximately halfway through the nearly 12-minute interview recorded on the
officer’s body camera, the officer relayed this information over his radio to police
dispatch and was immediately informed that Wilcox had been apprehended. The
officer asked Monroe a few more questions, and Monroe gave statements about
alleged past bad acts that Wilcox had committed against her.
       {¶ 5} Wilcox was indicted on multiple felony counts, including murder,
having weapons under disability, and tampering with evidence. During trial, after
it became clear that Monroe would not appear in court to testify, Wilcox objected
to the State’s request to show the officer’s body-camera footage on the basis that
admission of that evidence would violate his federal right to confrontation. The
trial court allowed the body-camera footage to be admitted into evidence. Wilcox
was ultimately found guilty on the counts tried by the State.
       {¶ 6} In a two-to-one decision, the First District affirmed Wilcox’s
convictions for having weapons under disability and tampering with evidence but
reversed the murder conviction and remanded the matter to the trial court for a new
trial on the that charge. 

 (1st Dist.). In addressing the State’s
argument that admission of the body-camera footage into evidence did not violate



                                         3
                              SUPREME COURT OF OHIO




Wilcox’s right to confrontation, the court first noted that the State had failed to set
forth any substantive analysis of that issue in its appellate brief:


        [T]he state does not substantively address the argument, beyond
        making a general allegation that Ms. Monroe’s statements fell within
        certain categories of admissible hearsay statements. It seems to
        acknowledge that the statements were testimonial in nature, but it
        does not clarify its position. And it fails to reconcile the distinction
        between admissibility for hearsay purposes and constitutional
        requirements under the Confrontation Clause [of the Sixth
        Amendment to the United States Constitution].


Id. at ¶ 18.
        {¶ 7} The court of appeals determined that “the video does contain several
statements in response to police questions that could be viewed as addressing an
ongoing emergency” but that “the main thrust of the video implicates the
Confrontation Clause.” Id. at ¶ 20. The court concluded that the statements
captured on the body-camera footage were testimonial because “the primary
purpose of . . . [the officer’s] questioning of Ms. Monroe was to gather facts
regarding a past crime for later prosecution.” Id. at ¶ 21. Because Monroe was not
present and available for cross-examination during trial, the court of appeals held
that admission of the body-camera footage into evidence violated Wilcox’s right to
confrontation. Id. at ¶ 23. The court held that this was not harmless error, id. at
¶ 25, and that the trial court’s error warranted reversal of Wilcox’s murder
conviction, id. at ¶ 46. The First District remanded the matter for a new trial on
that charge. Id.
        {¶ 8} The judge who concurred in part and dissented in part concluded that
Monroe’s statements were nontestimonial and were admissible as evidence under




                                           4
                                 January Term, 2024




the excited-utterance exception to the hearsay rule. Id. at ¶ 47 (Winkler, J.,
concurring in part and dissenting in part). This judge reasoned that the officer
whose body camera captured Monroe’s statements “was not sure that the suspect
had been apprehended” when he was questioning Monroe and that under the totality
of the circumstances, all Monroe’s statements were nontestimonial since the officer
was seeking information to appropriately respond to an ongoing emergency, not to
gather facts for a later prosecution. Id. at ¶ 59 (Winkler, J., concurring in part and
dissenting in part).
        {¶ 9} We accepted jurisdiction over the State’s sole proposition of law:
“Video footage of the response of a witness in the immediate aftermath of a
shooting is not ‘testimonial’ and does not interfere with a defendant’s right to
confrontation.” See 

.
                                    ANALYSIS
        {¶ 10} The Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” In Crawford v. Washington, 

 (2004), the United States Supreme Court explained that the key question for
determining whether a Confrontation Clause violation has occurred is whether an
out-of-court statement is “testimonial.” 

. If a statement is testimonial,
its admission into evidence will violate the defendant’s right to confrontation if the
defendant does not have an opportunity to cross-examine the declarant. 

 at 53-
56.
        {¶ 11} To determine whether a statement is testimonial, courts must look to
post-Crawford decisions to ascertain whether the statement bears indicia of certain
factors that would make it testimonial. For example, the primary purpose of a
testimonial statement is to create an out-of-court substitute for trial testimony. Ohio
v. Clark, 

 (2015). That primary purpose must be measured
objectively by the trial court, accounting for the perspectives of the interrogator and



                                          5
                             SUPREME COURT OF OHIO




the declarant. Michigan v. Bryant, 

 (2011). Also important
to consider is whether the statement was made during an ongoing emergency, i.e.,
whether there was a continuing threat to the victim. 

. An emergency
may cease to exist if the declarant provides law-enforcement officers with
information that indicates the emergency no longer exists or if the perpetrator is
disarmed or apprehended. 

. Moreover, a conversation that begins as an
interrogation to determine the need for emergency services may evolve into a
testimonial statement once the purpose of rendering emergency assistance has been
achieved. Davis v. Washington, 

 (2006).
       {¶ 12} The United States Supreme Court has concluded that an ongoing
emergency renders a statement nontestimonial when the victim makes a statement
to an operator during a 9-1-1 call. See 

. In Davis, the Court
noted that the declarant made statements as the events in question were happening,
and it reasoned that those statements constituted a call for help against a bona fide
physical threat, making those statements nontestimonial. 

. On the
other hand, the Court stated that statements made to law-enforcement officers by a
victim of domestic violence after the officers had secured the perpetrator in another
part of the home were testimonial, because those statements were neither a cry for
help nor the provision of information enabling the officers to immediately end a
threatening situation; rather, they were given to establish events that had occurred
previously. 

.
       {¶ 13} We conclude that this case involves the type of scenario discussed in
Davis in which statements made by the declarant evolved from being
nontestimonial to testimonial during the course of police questioning. When the
police officer began questioning Monroe, he had no indication that the shooting
suspect had been apprehended. Viewing this officer’s questioning objectively, we
find that the primary purpose of the initial questioning was to gather information
necessary to respond to an ongoing emergency.           Thus, the officer’s initial




                                         6
                                January Term, 2024




questioning elicited nontestimonial statements from Monroe, and the First District
erred in concluding that those statements were testimonial.
       {¶ 14} Halfway through the questioning, however, after the police officer
relayed Wilcox’s name and identifying information over his radio, the officer was
told, “We have him in custody.” This statement, which is clearly audible on the
body-camera footage, unequivocally demonstrates that the person identified by
Monroe as the shooter had been apprehended by the police, and at that point, there
was no longer an ongoing emergency. Thus, from that point forward, the statements
given by Monroe were testimonial since they were not given to assist the officer in
addressing an ongoing emergency but rather, to establish events that had occurred
previously. The First District did not err in concluding that these postapprehension
statements were testimonial.
       {¶ 15} As explained above, the First District incorrectly concluded that the
statements given by Monroe prior to the police officer’s learning that Wilcox had
been apprehended were testimonial.              Because those statements were
nontestimonial, their admission into evidence did not violate Wilcox’s right to
confrontation.
       {¶ 16} Whether Monroe’s initial statements captured on the police officer’s
body-camera footage were properly admitted into evidence thus hinges on whether
the statements constituted inadmissible hearsay. Two factors prevent us from
deciding that question in this appeal. First, the hearsay question is beyond the scope
of this appeal, as the State’s sole proposition of law involves only whether Monroe’s
statements captured on video were testimonial and whether the admission of those
statements into evidence violated Wilcox’s right to confrontation. Because the
hearsay question is beyond the scope of the proposition of law that we accepted for
review, we decline to consider that issue in this appeal. See Epcon Communities
Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 

.




                                          7
                                   SUPREME COURT OF OHIO




         {¶ 17} Second, the First District did not have an opportunity to consider that
question, because it concluded that the admission of the statements into evidence
violated Wilcox’s right to confrontation, thus mooting the hearsay question.1
Because the First District did not have a chance to address this issue, we will not
consider it in the first instance. See Sizemore v. Smith, 

(1983) (“This court should be hesitant to decide [issues that were not raised or
argued by the parties] for the reason that justice is far better served when it has the
benefit of briefing, arguing, and lower court consideration before making a final
determination.”). Instead, we remand the case for the First District to consider that
issue.
         {¶ 18} Because we do not reach the hearsay issue, we cannot conduct a
harmless-error analysis as advocated for by the State, amicus curiae the Ohio
Attorney General, and the opinion concurring in part and dissenting in part. A new
harmless-error analysis cannot be conducted until the admissibility of the
nontestimonial statements from the police officer’s initial questioning of Monroe
has been determined, because whether those statements were admissible will have
a direct impact on the harmless-error analysis.
         {¶ 19} The opinion concurring in part and dissenting in part repeatedly
asserts that if the trial court erred in admitting the testimonial statements in the
second half of the body-camera video, that that error was harmless because those
statements were cumulative of the nontestimonial statements made in the first half
of the video. See opinion concurring in part and dissenting in part, ¶ 27, 45, 47-48.


1. The opinion concurring in part and dissenting in part asserts that “[t]he First District should have
adhered to the ‘well established’ constitutional-avoidance principle and decided the evidentiary
hearsay issue before reaching the constitutional Confrontation Clause issue.” Opinion concurring
in part and dissenting in part, ¶ 40, fn. 1. But this court has never applied the constitutional-
avoidance doctrine to avoid analyzing alleged evidentiary violations that implicate both the
Confrontation Clause and the Ohio Rules of Evidence. Quite the opposite: In State v. Jones, we
said, “Because certain testimonial statements are barred by the Confrontation Clause of the Sixth
Amendment to the United States Constitution irrespective of their admissibility under the Rules of
Evidence, we undertake the constitutional inquiry first,” 

.




                                                  8
                                 January Term, 2024




But that approach merely highlights why we cannot conduct the harmless-error
analysis at this time. To reach its conclusion that any error was harmless because
any testimonial statements were cumulative of the nontestimonial statements, the
opinion concurring in part and dissenting in part must assume that the first half of
the video was properly admitted into evidence. But that is precisely the analysis
that the First District must conduct on remand. We cannot hold that the admission
of the second half of the video was cumulative and therefore harmless when we do
not know whether the first half of the video was admissible. Because we remand
the case to the First District so that that court may consider the hearsay question in
the first instance, we cannot make a harmless-error determination at this time.
       {¶ 20} Furthermore, the opinion concurring in part and dissenting in part is
mistaken when it asserts that we are sending “the case back to the court of appeals
to sort out whether the admission of the second part of the video constituted
harmless error,” id. at ¶ 26. Rather, we are remanding the case for the First District
to determine whether the first half of the video is admissible under the Rules of
Evidence regarding hearsay. Once it has made that determination, then it must
determine whether the trial court’s improper admission of the second half of the
video was harmless. If the First District finds that the first half of the video was
improperly admitted hearsay, then it must conduct a harmless-error analysis for the
entire video. If the First District finds that the first half of the video was properly
admitted, only then may it conduct a harmless-error analysis regarding the
admission of the second half of the video. The admission of both halves of the
video are inextricably linked, and this court cannot determine whether the
admission of one half was harmless without determining whether the other half was
properly admitted.
                                  CONCLUSION
       {¶ 21} Because the police officer’s primary purpose in eliciting the
statements that Monroe made prior to Wilcox’s apprehension was to address an



                                          9
                              SUPREME COURT OF OHIO




ongoing emergency, those statements were nontestimonial. The First District Court
of Appeals accordingly erred when it concluded that the admission of those
statements into evidence violated Wilcox’s rights under the Confrontation Clause
of the Sixth Amendment to the United States Constitution. We therefore reverse
the First District’s decision on this basis. We remand the case to that court so that
it may determine in the first instance whether those nontestimonial statements were
admissible. After making that determination, the First District must revisit its
harmless-error determination and address Wilcox’s remaining assignments of error,
as necessary.
                                                                    Judgment reversed
                                                                  and cause remanded.
                                __________________

        STEWART, J., concurring in judgment only.
        {¶ 22} I do not disagree with the lead opinion’s legal analysis of the
Confrontation Clause of the Sixth Amendment to the United States Constitution as
applied to the facts of this case, nor do I disagree with the decision to remand this
case to the First District Court of Appeals to decide the hearsay and harmless-error
questions in light of this court’s decision regarding whether the statements at issue
were testimonial.      However, I do not believe we should even reach the
Confrontation Clause argument, because appellant, the State of Ohio, forfeited the
argument that there was an ongoing emergency by failing to raise that claim below
or in its initial memorandum filed with this court. See State v. Rogers, 2015-Ohio-
2459, ¶ 21 (“forfeiture is the failure to timely assert a right or object to an error”).
        {¶ 23} The First District noted the State’s failure to address the
Confrontation Clause argument: “[The State] seems to acknowledge that the
statements were testimonial in nature, but it does not clarify its position. And it
fails to reconcile the distinction between admissibility for hearsay purposes and




                                           10
                                January Term, 2024




constitutional requirements under the Confrontation Clause.” 

 (1st Dist.). Despite this explicit critique, the State also did not raise an
“ongoing emergency” argument in its memorandum in support of jurisdiction filed
with this court; instead, it focused once again on hearsay arguments.
        {¶ 24} Additionally, although the State did raise an ongoing-emergency
argument in its merit brief, that is not part of the proposition of law this court
accepted for review. As the lead opinion notes, this court will not analyze questions
outside the proposition of law accepted for review. See lead opinion, ¶ 16. Since
the ongoing-emergency argument was not part of the State’s proposition of law, let
alone anywhere in its memorandum in support of jurisdiction, this court should not
address the issue. And to be clear, the late presentation of the ongoing-emergency
argument does not change the fact that the State forfeited the argument in its appeal
to the First District.
        {¶ 25} We traditionally do not decide cases based on forfeited arguments,
but since I agree that the lead opinion’s legal analysis of the Confrontation Clause
argument is correct but for the State’s forfeiture of that argument, I concur in
judgment only.
                               __________________

        DEWINE, J., joined by KENNEDY, C.J., and HUFFMAN, J., concurring in
part and dissenting in part.
        {¶ 26} The question in this case is whether it violated Quantez Wilcox’s
rights under the federal Confrontation Clause to admit at his trial a police officer’s
bodycam video, recorded during the officer’s immediate response to a reported
shooting. To answer that question, we need to determine whether the witness’s
statements to the officer in the video were testimonial. That is, we must decide
whether the primary purpose of the officer’s questioning of the witness was to serve
as a substitute for courtroom testimony. The lead opinion, however, makes no real




                                         11
                               SUPREME COURT OF OHIO




effort to examine the video. Instead, it declares that the witness’s statements in the
first six and half minutes of the 12-minute video were nontestimonial and that the
statements in the remainder were testimonial. It then sends the case back to the
court of appeals to sort out whether the admission of the second part of the video
constituted harmless error.
        {¶ 27} There are at least two problems with the lead opinion. First, it
incorrectly holds that the entire second part of the video was testimonial. Second,
it ignores the fact that all the relevant statements contained in the second part of the
video were cumulative of those made in the first part of the video and thus admitting
the second part of the video could not have prejudiced Wilcox. Rather than send
the Confrontation Clause issue back to the court of appeals, we should reverse on
that issue and remand for consideration of the remaining assignments of error.
                                   I. Background
        {¶ 28} This case is about the contents of a police officer’s bodycam video.
Specifically, it’s about Officer David Price’s questioning of Doniesha Monroe in
the video shortly after Wilcox shot her boyfriend. In the video, a clearly distraught
Monroe interacts with Officer Price and another officer.
        {¶ 29} The First District held that admission of the video at trial violated
Wilcox’s rights under the federal Confrontation Clause. We accepted this case on
a proposition of law that asserts that the video taken in the immediate aftermath of
the shooting was not testimonial and therefore did not violate Wilcox’s
Confrontation Clause rights.
        {¶ 30} The lead opinion quickly concludes that in the first six and a half
minutes of the video, “the primary purpose of the initial questioning was to gather
information necessary to respond to an ongoing emergency,” which made the
witness’s statements nontestimonial and the Confrontation Clause inapplicable.
Lead opinion, ¶ 13. It then zeroes in on a single statement—one and a half seconds
out of a nearly 12-minute-long video—to conclude that the emergency certainly




                                          12
                                 January Term, 2024




ended, and that the remaining five and a half minutes of the video contained only
testimonial statements whose admission into evidence violated the Confrontation
Clause. Id. at ¶ 14. And rather than inspect the video to determine whether the
admission of those statements prejudiced Wilcox, a majority of this court remands
the case to the First District to do that work. Id. at ¶ 17.
        {¶ 31} Other than its snap conclusion that the first six and a half minutes
was nontestimonial and the last five and a half minutes testimonial, the lead opinion
provides no real analysis of the video. But because cases like this are “highly
context-dependent,” Michigan v. Bryant, 

 (2011), and require a
careful parsing of each statement to determine whether they “evolved from being
nontestimonial to testimonial during the course of police questioning,” lead opinion
at ¶ 13, I begin with the video evidence.
                   A. The first six and a half minutes of the video
        {¶ 32} The video begins with Officer Price responding to a reported
shooting. As soon as he arrives at the scene, he is told that “there is somebody with
a gun” and that a man was shot. In the video, you can see an unresponsive man
lying on his back nearby. People are pacing and shouting with breathless, frantic
voices. Officer Price asks generally, “Did you guys see anything?” Doniesha
Monroe responds, “Yes I know who did it I was standing right there.” Officer Price
then takes her to the side to question her about the shooting. A sobbing Monroe
tells Officer Price that the man who was shot in the chest was her boyfriend,
Keshawn Turner. Officer Price then asks her what happened. She tearfully replies:


                I was standing at the car. I’ve made multiple, um, reports
        about my ex back when he busted out my windows. They said he
        couldn’t get the cameras but I told them that I watched him do it.
        When I called his name he ran away. He shot at my car and then we
        was just walking past right there and he shot at him.



                                            13
                              SUPREME COURT OF OHIO




Monroe proceeds to identify the shooter as Quantez Wilcox, her ex-boyfriend. And
she tells Officer Price that Wilcox fled the scene in a car after the shooting.
       {¶ 33} A woman then approaches Monroe to comfort her, telling Officer
Price, “I don’t know her, but I want to know that she’s OK.” Officer Price tells the
woman she needs to leave because the police are “trying to put pieces together.”
       {¶ 34} After the woman leaves, Officer Price continues to speak to Monroe.
She gives Officer Price information to help track Wilcox down, including his name,
age, and birthday, the make and color of the car that he fled in, and a description of
what he was wearing. Officer Price provides this information to dispatch over the
radio. A dispatcher then relays the information back over the radio—presumably
to all on-duty officers. A few seconds later, a voice over the radio says, “We have
him in custody.” Several more seconds later, Officer Price tells Monroe, “OK, I
think we have him in custody, maybe.”
                  B. The final five and a half minutes of the video
       {¶ 35} The news that a suspect might be in custody causes no discernable
change in the demeanor of Officer Price or Monroe. Officer Price continues to ask
Monroe questions about herself and the shooting. And Monroe repeats much of
what she has already told Officer Price.
       {¶ 36} In this segment of the video, Monroes continues to speak through
tears and with a shaky, hurried voice. Because of her distress and agitation, Officer
Price asks her to take a seat in his car, but Monroe blurts out, “I can’t sit down, I’m
sorry, I can’t.” Officer Price responds, “OK, I under—, OK I understand. That’s
OK. I wish I had a water or something to give to you.” After making sure she has
all of her belongings, Officer Price asks Monroe, “What was the other guy mad
about? Your ex-boyfriend?” She hastily lets loose a stream of facts:




                                           14
                                 January Term, 2024




                 He’s my ex. Yes. But I, but I’m, I constantly made reports.
       I made a court, a report, cuz my car was parked in a parking lot, I
       went downstairs for work, and my car was shot at. I can’t really
       pinpoint that on him because like I said I didn’t see. But my
       windows busted out. He didn’t even know I was walking through
       the parking lot and I see him busting the windows out. And District
       One got their report, like I kept making reports, I kept making
       reports.


       {¶ 37} Officer Price stays with Monroe while he works with another male
officer at the scene to determine whether the person that another witness saw just
before the shooting was Wilcox, or some other suspect. Monroe is still noticeably
shaken—so much so that a female officer approaches her and twice asks, “Anything
I can do to help you?” When the female officer confirms that Monroe was the
victim’s girlfriend, she asks Monroe if they “have any children.” Monroe responds
that she is three months pregnant. The female officer—apparently concerned about
the health of Monroe’s child—immediately tells her, “You gotta calm down—you
know that then, don’t you.” The female officer then takes Monroe away from the
scene so she doesn’t have to keep watching her mortally wounded boyfriend get
treatment from the EMS.
       {¶ 38} After the female officer leads Monroe away, Officer Price asks the
other male officer, “Didn’t they say they had him in custody? Or was that
something else?” The video cuts off shortly after, with the male officer giving
Officer Price a physical description of a possible suspect that he obtained from the
other witness.




                                         15
                                   SUPREME COURT OF OHIO




II. The witness’s statements in the entire video were nontestimonial because
       the primary purpose of the questions was to respond to an ongoing
                                           emergency
         {¶ 39} “In all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .” U.S. Const, amend. VI. That
generally means that a witness’s testimonial statements can’t be admitted into
evidence at trial unless the defendant has an opportunity to cross-examine that
witness. Crawford v. Washington, 

 (2004). But nontestimonial
statements don’t implicate the Confrontation Clause at all. See 

.
         {¶ 40} To determine whether a statement is testimonial or nontestimonial,
we must determine the “primary purpose” of the questions that the police asked the
witness. Bryant, 

. If the primary purpose of police questioning was
to obtain evidence for trial, the statements in response are testimonial. 

.
But if the primary purpose of police questioning was to gather information to
respond to an ongoing emergency, the statements in response are nontestimonial.2

 And “[t]o determine whether the primary purpose of [police questioning was]
to enable police assistance to meet an ongoing emergency, which would render the
resulting statements nontestimonial, we objectively evaluate the circumstances in




2. The opinion concurring in judgment only argues that the State forfeited its ongoing-emergency
argument because it “fail[ed] to raise that claim below or in its initial memorandum filed with this
court.” Opinion concurring in judgment only, ¶ 22. It makes that argument because the State didn’t
specifically argue that the relevant statements were made in response to an ongoing emergency until
its merits brief in this court. See id. at ¶ 23-24. But it conflates the argument that the State makes
with evidence that supports that argument. The State has consistently argued that the statements in
the bodycam video are “not ‘testimonial’ under Crawford v. Washington.” In fact, the State’s
proposition of law that we accepted is that “[v]ideo footage of the response of a witness in the
immediate aftermath of a shooting is not ‘testimonial’ and does not interfere with a defendant’s right
to confrontation.” Lead opinion at ¶ 9. And whether that’s true in this case is informed by whether
the police were responding to an ongoing emergency. See 

. The State therefore
preserved its nontestimonial argument and is allowed to point to evidence that supports that
argument—such as evidence that suggests that there was an ongoing emergency.




                                                 16
                                 January Term, 2024




which the encounter occur[red] and the statements and actions of the parties.”
(Cleaned up.) 

.
           {¶ 41} That brings me back to the bodycam video. The objective evidence
indicates that the primary purpose of Officer Price’s questioning was to enable
police assistance to meet an ongoing emergency. Consider the circumstances.
When Officer Price arrived at the scene of the shooting, people were frantically
looking for help after having just watched a man get shot in the chest. It was
chaotic. And as the lead opinion notes, there was “no indication that the shooting
suspect had been apprehended.” Lead opinion at ¶ 13. For all anyone knew, an
armed gunman was still on the loose.          The lead opinion therefore correctly
concludes that Monroe’s statements in the first six and a half minutes of the video
were nontestimonial because the primary purpose of Officer Price’s questioning
was to facilitate a police response to an ongoing emergency.
           {¶ 42} But the lead opinion is wrong that the primary purpose of the
questioning changed. It’s true that a voice over the radio said “we have him in
custody” after dispatch relayed the information about Wilcox that Officer Price had
learned from Monroe. But that doesn’t “unequivocally demonstrate[]” that in the
minds of the participants “there was no longer an ongoing emergency,” lead opinion
at ¶ 14.
           {¶ 43} We must look to “the statements and actions of the parties” to
determine whether Officer Price’s questions were directed toward responding to
what was reasonably believed to be an ongoing emergency. 

. Despite
the lead opinion’s claim that the statement over the radio “unequivocally
demonstrates” that the shooter had been apprehended, Officer Price immediately
reacted with a tentative, “I think we have him in custody, maybe.” Toward the end
of the video, Officer Price still needed to ask, “Didn’t they say they had him in
custody? Or was that something else?” Additionally, the other male officer was
still chasing down a lead on another possible suspect. And all the while, Monroe



                                         17
                               SUPREME COURT OF OHIO




was so visibly and audibly distraught that multiple people felt compelled to try to
comfort her.
         {¶ 44} In hindsight, and based on a single statement over the radio, it may
appear clear to the justices joining the lead opinion that there was no longer an
ongoing emergency. But “the focus must be on the perspective of the parties at the
time of the interrogation, and not based on hindsight, for ‘[i]f the information the
parties knew at the time of the encounter would lead a reasonable person to believe
that there was an emergency, even if that belief was later proved incorrect, that is
sufficient for purposes of the Confrontation Clause.’ ” (Brackets in original.) State
v. Jones, 

, quoting 

. Here, the objective
evidence at the time of the questioning—including “the circumstances in which the
encounter occur[ed] and the statements and actions of the parties,” Bryant at 359—
indicates that Officer Price, Monroe, and both the other officers in the video were
under the impression that there may have still been an ongoing emergency and that
Monroe       still   needed   to   be   cared    for.    Therefore,   there   is   no
nontestimonial/testimonial split in the video. The primary purpose of all the
questioning was to help deal with an ongoing emergency—not to collect evidence
for trial.
  III. Admitting the entire video into evidence did not constitute prejudicial
                                         error
         {¶ 45} Even if the lead opinion is right about the nontestimonial/testimonial
split, admitting the entire bodycam video into evidence was harmless error. Any
relevant testimonial statement that was erroneously admitted was cumulative of
nontestimonial statements already admitted into evidence.
         {¶ 46} Confrontation Clause violations are harmless when there is still
“‘“overwhelming proof’”” of the defendant’s guilt without the erroneously
admitted evidence. Carter at ¶ 47, quoting State v. Hood, 

,
quoting State v. Williams, 

 (1983), paragraph six of the syllabus.




                                          18
                               January Term, 2024




“Accordingly, the admission of purely cumulative evidence in violation of the Sixth
Amendment amounts to harmless error.” 

       {¶ 47} Again, that brings me to the video. The only relevant statements that
Monroe made after the point in the video at which the lead opinion says the
interaction turned testimonial were repeats of statements that she had already made
during the nontestimonial portion of the exchange. In other words, the witness’s
statements in the second part of the video were merely cumulative of her
nontestimonial statements that were already in evidence. Specifically: that Wilcox
was her ex-boyfriend, that she had filed many reports against him, that he had shot
at her car, and that he had busted out her car windows.
       {¶ 48} Before the lead opinion’s nontestimonial/testimonial split, Monroe
stated that her “ex” was the shooter and that “his name is Quantez Wilcox.” After
the split, she confirmed that “he’s [her] ex” and that he was the shooter.
Cumulative. Before the split, Monroe stated that she “made multiple . . . reports
about [Wilcox] back when he busted out [her] windows.” After the split, she
described how she “constantly made reports” and how she “[saw] him busting [her]
windows out.” Cumulative. Before the split, Monroe stated that Wilcox had “shot
at [her] car.” After the split, she expressed that she “made a court, a report,
[because] . . . [her] car was shot at.” Cumulative. All cumulative.
       {¶ 49} Because Monroe had already shared this information during the
nontestimonial portion of the bodycam video, it couldn’t have prejudiced Wilcox.
It was merely cumulative and didn’t impact the verdict. Because admitting the
second part of the video didn’t prejudice Wilcox, any error in its admission was
harmless.
       {¶ 50} The lead opinion doesn’t dispute that the statements in the second
half of the video were cumulative of those in the first. (How could it?) Yet it
refuses to state the obvious: that even under its theory that the second half of the
video was testimonial, there was no prejudicial error in violation of the



                                        19
                                    SUPREME COURT OF OHIO




Confrontation Clause because the statements in the second half were cumulative of
those in the first. Instead, it wants to send the case back to the First District with
the Confrontation Clause issue unresolved.
         {¶ 51} In its opinion, the First District held that all the statements in the
video were testimonial.3 We accepted this case to review that holding. We
unanimously agree that the First District was wrong as a matter of constitutional
law, and as the lead opinion makes clear, that is the only issue before us today.
There is simply no reason not to resolve the Confrontation Clause issue here. The
record makes abundantly clear that even under the lead opinion’s theory that the
statements in the second half of the video were testimonial, there was no prejudicial
error in violation of the Confrontation Clause. We should say so.
                                          IV. Conclusion
         {¶ 52} The primary purpose of Officer Price’s questioning was to facilitate
a police response to an ongoing emergency. Monroe’s statements in the entirety of
the bodycam video were therefore nontestimonial. But even assuming that the lead
opinion’s nontestimonial/testimonial split is right, the trial court’s admission of the
second part of the video was harmless error. I would therefore reverse the First
District Court of Appeals’ judgment on the Confrontation Clause issue and remand
the case for it to consider the remaining assignments of error.
                                      __________________




3. The First District should have adhered to the “well established” constitutional-avoidance
principle that “this court will not reach constitutional issues unless absolutely necessary,” and
decided the evidentiary hearsay issue before reaching the constitutional Confrontation Clause issue.
State v. Talty, 

, ¶ 9. It is true that in at least one case, a prior court overlooked this
rule. See State v. Jones, 

. But our more consistent practice has been to
adhere to the constitutional-avoidance principle in cases like these. See, e.g., State v. Beasley, 2018-
Ohio-493, ¶ 165-188; State v. McKelton, 

; State v. Fry, 

. As we recently explained, it is a “principle of judicial restraint . . . that courts should not
decide constitutional questions unless it is absolutely necessary to do so.” Epcon Communities
Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 

.




                                                   20
                                  January Term, 2024




        Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for appellant.
        Elizabeth R. Miller, Ohio Public Defender, and Mallorie Thomas, Assistant
Public Defender, for appellee.
        Dave Yost, Attorney General, T. Elliot Gaiser, Solicitor General, Michael J.
Hendershot, Chief Deputy Solicitor General, and Samuel C. Peterson, Deputy
Solicitor General, urging reversal for amicus curiae Ohio Attorney General Dave
Yost.
        Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van and Kristen Hatcher, Assistant Prosecuting Attorneys, urging reversal for
amicus curiae Cuyahoga County Prosecutor’s Office.
        Russell S. Bensing, in support of appellee, for amicus curiae Ohio
Association of Criminal Defense Lawyers.
                                 __________________




                                          21