[Cite as State v. Walker , 2023

- Ohio

- 3852.]
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

: State of Ohio, No. 22AP

- 113
: ( C.P.C. No. 20CR

- 4363 ) Plaintiff

- Appellee,

: No. 22AP

- 114
v. ( C.P.C No. 20 CR

- 4112 )

: Jay lon Walker
, No. 22AP

- 115
: ( C.P.C. No. 20CR

- 3928 ) Defendant

- Appellant

. : ( REGULAR CALENDAR)

:

D E C I S I O N

Rendered on October 24, 2023

On brief: G. Gary Tyack
, Prosecuting Attorney, and Kimberly M. Bond for appellee. Argued: Kimberly M. Bond

. On brief: The Law Office of Thomas F. Hayes , LLC , Thomas F. Hayes , and Emily D. Anstaett for appellant

. Argued: Thomas F. Hayes

.

APPEAL S from the Franklin County Court of Common Pleas

EDELSTEIN , J. {¶ 1} Defendant

- appellant, Jaylon Walker , appeals from the judgment s of the Franklin County Court of Common Pleas entered on January 25 , 2022 and January 26,

2022

. For the following reasons, we affirm

. I. Factual and Procedural Background {¶ 2} Walker ’s appeals, which this court consolidated sua sponte, arise from four separate criminal indictments stemming from events that took place over the course of

2020.No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 2

a. Four Indictments {¶ 3} Walker was indicted on August 24 , 2020 in Franklin C.P. No. 20CR

- 3928

w ith the following: one count of aggravated burglary in violation of R.C. 29 11 .11 , a felon y of the first degree; one count of felonious assault in violation of R.C. 2903.11 , a felony of the
first degree; one count of kidnapping in violation of R.C. 290 5 .0 1 , a felony of the first degree; one count of murder in violation of R.C. 2903.02 , a n unspecified felony ; one count of improperly discharging a firearm in violation of R.C. 29 23

. 161 , a felony of the second degree ; and one count of having a weapon under disability in violation of R.C. 2923.13, a felony of the third degree. Each of the first five counts carried a three

- year firearm specification pursuant to R.C. 2941.145(A). The indictment arose from an incident on July 24, 2020 at the home of Brandon Augst whe n Devontay Stanton was fatally shot. {¶ 4} Walker was subsequently indicted on September 2, 2020 in Franklin C.P. No.
20CR

- 4 112 and on September 17, 2020 in Franklin C.P. No. 20CR

- 4363 for two alleged
firearm thefts that o ccurred on February 17, 2020 and August 7, 2020, respectively. In both incidents, Walker was charged with the following: one count of robbery in violation of
R.C. 2911.02 , a felony of the second degree; one count of grand theft when the property is a
fire arm or dangerous ordnance in violation of R.C. 2913 .02, a felony of the third degree;
and one count of having a weapon under disability in violation of R.C. 2923.13, a felony of the third degree. In both indictments, the robbery and grand theft charges ca rried one

- year firearm specification s pursuant to R.C. 29 4 1.141(A). {¶ 5} Also on September 17, 2020, Walker was indicted separately in Franklin C.P.
No. 20CR

- 4362 for acts related to the July 24, 2020 shooting. He was charged with two
counts of intimidation of a witness in violation of R.C. 2921.04 and two counts of retaliation in violation of R.C. 2921.05, all felonies of the third degree. {¶ 6} On April 8, 2021, the court granted the state ’ s motion for joinder for purposes
of trial of the four indic tments , which totaled 14 counts all together

. Following consolidation, Walker waived his right to a jury trial on the three weapons under disability charges

. The trial court dismissed both intimidation charges and one count of retaliation
indicted in Franklin C.P. No. 20CR

- 4362 at the prosecution ’ s request

.No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 3

{¶ 7} Trial began on the remaining eight counts on December 6, 2021 , with five

counts tried to a jury and three counts of weapon s under disability tried to the bench. The following evidence was adduced at trial and is reviewed here in chronological order

. b. Facts Relevant to Case No. 20CR

- 4112 {¶ 8} On February 16, 2020, James Ford placed a n advertisement to sell his gun on a website used to buy and sell firearms known as Armslist. He received an email expressing interest and the parties agreed to meet the following afternoon to complete the sale. ( Dec. 7,

2021 Tr. at 78.) After waiting for a few minutes in the parking lot , Ford testified he was
about to leave when an individual approached his ca r and identified himself as the buyer.
Ford asked to see his concealed carry permit and the individual said he did not have it with
him but showed a driver ’ s license instead

. (Tr. at 79

- 81.) The buyer then asked to see the

gun. Ford opened the case and began to put his own permit back into his wallet. As he did, the buyer picked up the unloaded firearm, inserted ammunition, racked the gun, then fled. ( Tr. at 81 .) The next day, Ford made a police report and shared with the police the email
and text message communications used to arrange the sale and the serial number of the

gun. (Tr. at 86.) He later identified Walker from a photo array presented by the Columbus
Division of Police and identified him in the courtroom when called to testify at t rial. (Tr. at 87 , 90 .)

c. Facts Relevant to Case No. 20CR

- 3928 {¶ 9} On July 24, 2020, Shannon Peterman was at t he home of his friend, Brandon Augst, playing video games with a third friend, Damarion Moon. Peterman was 16 years old at the time. According to Peterman ’ s testimony at trial, Moon was robbed the day before, and the friends decided to get Moon ’ s property back from the individual they
believed was responsible for the theft

. ( Dec. 8, 2021 Tr. at 346.) Peterman, Augst, and
Moon drove to a residence where they believed an individual named “ Quano ” lived, knocked on the door, and were informed he was not there. (Tr. at 347

- 49.) They left the property and returned to Augst ’ s home

— specifically his back bedroom

— to continue hanging out

. (Tr. at 350.) {¶ 10} Peterman testified that n ot long after they returned to Augst ’ s home
, an individual named Devon tay Stanton knocked on the front door

. Stanton began yelling when Augst answered
, angry that Augst, P e terman, and Moon had driven to his mother ’ sNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 4

house that afternoon making accusations about stolen property

. (Tr. at 35 1

- 52 .) Peterman
testified at trial that he stuck his head out into the hallway to see what was happening after hearing the commotion. He recalled seeing only Stanton on the porch and Augst in the doorway before retur ning to the back bedroom

. (Tr. at 352.) Soon after, he entered the living room after hearing further commotion and saw Stanton and Augst “ tussling ” on the living room floo r. ( Tr. at 353.) Stanton held Augst in a chokehold with his left arm and had a gun in his right hand

. Peterman recalled that it sounded like Augst was trying to call for help and was struggling to breathe. (Tr. at 354.) Stanton looked up, saw Peterman , and began to yell threats in his direction. (Tr. at 35 7 .) {¶ 11} Peterman further testified that he then retreated to the front bedroom

. He heard a loud bang , which he assumed was a gunshot
, grabbed a gun he found in that
bedroom , moved back into the hallway, and began shooting in the direction of the living

room

. (Tr. at 358

- 59 .) He ducked into the stairwell to the house ’ s basement, where he
continued to shoot through the wall in the direction of the living room

. (Tr. at 361.) He testified that he noticed the basement wall getting struck by incoming bullets , so he went
back out toward the front bedroom. (Tr. at 362

- 63.) Peterman continued to shoot, only stopping when he accidentally struck the side of a safe in the bedroom closet

. Even after he stopped shooting, he heard continuing gunfire. ( Tr. at 363

- 64. ) {¶ 12} Peterman also testified that he entered the living room o nce the shooting
ceased and found Augst bleeding from an injury on the right side of his head a nd Stanton collapsed on the living room floor with a gun by his side. (Tr. at 367.) Police officers and
medics arrived soon thereafter. Peterman , Augst , and eventually Moon were placed in
three separate police cruisers while medics provided care to Stan ton

. (Tr. at 368.) Stanton was transported to a hospital, where he was eventually pronounced dead. {¶ 13} Augst spoke to a paramedic while in the police cruiser, which was captured on video by the cruiser ’ s dashcam and later admitted into evidence and played fo r the jury
as the state ’ s Exhibit K. In the video, Augst can be seen in the back of the cruiser bleeding
from a wound on his temple, in addition to several other smaller injuries. The first ten seconds show Augst pounding violently on the window and yelling in anger or pain. The windows are rolled up and the car does not appear to be on , and Augst begins to shout about the heat and dizziness he is experiencing. Eventually, a paramedic opens the door andNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 5

begins an initial assessment of Augst ’ s injuries , during which Augst describes what just transpired : They took me in the door. And they said, “ Who ’ s in the

house? ” I was like, “ A bunch of people, bro. Get the fuck outta here. ” They hit me with the gun. Then my litt le dude ran out with my brother ’ s gun and was like, “ Let him go. ” And then the dude pointed the gun at some [unintelligible] my little cousin ran back in the room. And they kept choking me out, saying, “ Come out here right now and bring the fuckin ’ guns
ou t here. We ’ re gonna kill him. We ’ re gonna kill him. ” And he pistol

- whipped me again, and I got all woozy. And then they shot at somebody in my bedroom or somewhere in the hall area. And they fuckin ’ shot back. I don ’ t know how I didn ’ t get hit. I ’ m dude ’ s body shield fuckin ’ in front of him.
(State ’ s Ex. K at 14:19:54 to 14:20:32

. )

He continues in the video:

Yeah. He choked me. He was threatening and then that he was going to kill me if everybody didn ’ t come into the living room. Yeah. And then m y dude shot him in the shit. I turned around and looked at his dumb ass. I [unintelligible] told you to fuckin ’ leave. This is not the fuckin ’ house you want [unintelligible] up in.

( Id. at 14:21:46 to 14:21: 58 .)

{¶ 14} Augst ’ s neighbor, Crista Williams, testified at trial that she heard multiple gunshots from the direction of Augst ’ s home and looked out the front door to see a man with a gun running from Augst ’ s front yard and cutting through a vacant lot adjacent to her
home. {¶ 15} Stanton ’ s girlfri end, Qua yshawna Howell
, testified at trial. She recounted
that o n the evening of July 23, 2020, Stanton came to her home with a backpack she
believed was stolen. It contained marijuana and a distinct “ orange reddish ” gun. ( Dec. 7,

2021 Tr. at 117.) How ell later overheard Stanton arguing with Walker on the phone about how to split up the contents of the stolen backpack
, “ arguing about who was supposed to get what half of what

. ” (Tr. at 141.) The next morning, Stanton borrowed Howell ’ s car around noon. He never returned. She recalled sending Stanton several text messages asking when he planned to return. (Tr. at 119.) Several minutes after sending her last textNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 6

message , Howell answer ed a call from Stanton ’ s cellphone and heard Walker exclaiming
that “ Devont [ ay ] just got shot. ” ( Tr. at 120.) She testified that Walker told her to check on Stanton and that he had to dispose of Stanton ’ s phone and a gun. She called back numerous times explaining Stanton had her car and keys. ( Id. ) Eventually, Walker drove to her home
with an unknown woman and took Howell to her car
, instructing her to find Stanton

. (Tr. at 123.) {¶ 16} E nsuing phone conversations with Walker
, two of which Howell recorded,
described how Walker had tried to discourage Stanton from going to Augst ’ s house
, but
Stanton could not be dissuaded. (Tr. at 143.) Walker explained to her that he only got involved in the altercation at Augst ’ s home after someone inside began shooting

. He returned fire but fled once he realized he had run out of ammunition. (Tr. at 148.) Howell
testified that the visit was spurred out of anger that Augst and others had shown up at
Stanton ’ s mother ’ s home unannounce d, not because Stanton had intended to rob anyone
at the home. ( Tr. at 146.) {¶ 17} Walker ’ s girlfriend, Gentry “ Simone ” Gilcrease, also testified at trial.
Gilcrease testified that she received a phone call from Walker following the incident describing what happened. He told her Stanton had “ wanted to go rob somebody. ” ( Tr. at 155.) He told her he went along because “ he felt like [Stanton] was going to die. So he wanted to go with his friend. ” ( Tr. at 156.) Gilcrease shared her impression that Walker
remained outside and never entered the residence. (Tr. at 1 72 .)
d. Facts Relevant to Case No. 20CR

- 4363 {¶ 18} After placing an advertisement to sell a gun on the Armslist website
, Alex
Weiland agreed to meet an interested buyer on August 7, 2020

. ( Dec. 9, 2021 Tr. at 429.) Weiland, along with his wife and children, were waiting in the parking lot for the buyer when a man approached the car on foot. (Tr. at 430

- 31.) Weiland exite d the vehicle and showed the gun to the buyer

. After seeing it was unloaded, the buyer grabbed the gun from
Weiland and fled

. (Tr. at 431.) A video of the encounter was captured by Weiland ’ s dashboard camera and shown at trial. ( State’s Ex. F.) Weiland later complete d a photo

array and identified Walker as the person who stole his gun. He also identified Walker at trial. ( Tr. at 4 32 , 436 .)No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 7

e. Trial and Sentencing {¶ 19} The jury trial concluded on December 10, 2021

. Walker was acquitted o f the retaliation charge from Franklin C.P. No. 20CR

- 4362 but was found guilty on all other

counts submitted to the jury , including each firearm specification

. The trial court found
Walker guilty of all three weapon s under disability charges tried to the bench

. The seven guilty verdicts were journalized on December 13, 2021. {¶ 20} The trial court conducted a sentencing hearing on January 20, 2022. In c ase
Nos. 20CR

- 4112 and 20CR

- 4363 , the trial court merged the robbery a nd gran d theft of a firearm convictions for purposes of sentencing. (Jan. 25, 2022 Jgmt. Entry.) In both cases , Walker received an indefinite sentence of four to six years for the robbery conviction
, with

a 12

- month consecutive sentence for the firearm s pecification. He received a concurrent

12

- month sentence for each of the weapon s under disability conviction s

. (Jan. 25, 2022 Jgmt. Entry.) {¶ 21} In c ase No. 20CR

- 3928 , Walker was sentenced to a mandatory life sentence with the possibility of parole after 15 years for his murder conviction, and an indefinite consecutive sentence of 16 to 20 years for the five other convictions. (Jan. 26, 202 2 Jgmt. Entry.)
II. Assignments of Error {¶ 22} Walker timely appeal ed from each of the three judgment entries and asserts the following assignments of error for our review :

[I.] The trial court erred by admitting into evidence hearsay statements of Brandon Augst.

[II.] The conviction for Kidnapping is not supported by legally sufficient evidence.
[III.] The Robbery convictions associated with the handgun thefts (Counts 1 and 10) are erroneous and must be vacated.

[IV.] The firearm specifications associated with the handgun thefts are not supported by legally sufficient evidence.

A. First Assignment of Error {¶ 23} In his first assignment of error, Walker challenges the trial court ’ s admission
of a dashcam video taken in the aftermath of the shoot ing while Augst was locked inside aNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 8

hot police cruiser. ( State’s Ex. K.) Specifically, he challenges the following two statements
from the video:

They took me in the door. And they said, “ Who ’ s in the house? ” I was like, “ A bunch of people, bro. Get the fuck outt a here. ” They hit me with the gun. Then my little dude ran out with my brother ’ s gun and was like, “ Let him go. ” And then the dude pointed the gun at some [unintelligible] my little cousin ran back in the room. And they kept choking me out, saying, “ Come o ut here right now and bring the fuckin ’ guns out here. We ’ re gonna kill him. We ’ re gonna kill him. ” And he pistol

- whipped me again, and I got all woozy. And then they shot at somebody in my bedroom or somewhere in the hall area. And they fuckin ’ shot back. I don ’ t know how I didn ’ t get hit. I ’ m dude ’ s body shield fuckin ’ in front of him.

* * *
Yeah. He choked me. He was threatening and then that he was going to kill me if everybody didn ’ t come into the living room. Yeah. And then my dude shot him in the shit. I turned around and looked at his dumb ass. I [unintelligible] told you to fuckin ’ leave. This is not the fuckin ’ house you want [unintelligible] up in.
(State ’ s Ex. K.) {¶ 24} Walker asserts that the video ’ s presentation to the jury violated his rights under the Sixth Amendment to the United States Constitution because Augst ’s statements
were testimonial and he did not testify at trial
, and that the video contains inadmissible hearsay.
1. The Confrontation Clause {¶ 25} Walker claims the dashcam video contains Augst ’ s testimonial statements
and thus playing the video for the jury without the ability to cross

- examine Augst at trial
violated his rights under the Confrontation Clause

. We review th is constitutional issue de

novo

. State v. McClain , 10th D ist. No. 13AP

- 347, 2014

- Ohio

- 93 , ¶ 16. {¶ 26} “ The Sixth Amendment to the United States Constitution guarantees that a person accused of committing a crime has the right to confront and cross

- examine witnesses testifying against him. ” State v. Cassell , 10th Dist. No. 08AP

- 1093, 2010

- Ohio

1881, ¶ 23. Thus, the Confrontation Clause generally limits the admission of statementsNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 9

made by declarants who are unavailable for cross

- examination at trial

. Id. at ¶ 24, citing Crawford v. Washington , 541 U.S. 36, 68 (200 4). While the Confrontation Clause prohibits the admission of testimonial statements, it “ does not apply to nontestimonial hearsay. ” State v. Hubbard , 10th Dist. No. 11AP

- 945, 2013

- Ohio

- 2735 , ¶ 29. Therefore, to
address Walker ’ s first assignment of erro r, we must first determine whether Augst ’ s statements on the dashcam video are testimonial. T he United States S upreme Court has
identified several categories of “ core ” testimonial statements : (1) “ ex parte in

- court testimony or its functional equivalent ; ” (2) “ extrajudicial statements

. . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or
confessions ; ” and (3) “ statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at
a later trial

. ” (Internal citations omitted.) Crawford at 51

- 52. {¶ 27} “ S tatements taken by police officers in the course of interrogations ” fall
under th is third category. Id

. at 52. O n one hand, the Supreme Court has held that a
statement is nontestimonial when “ made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an on going emergency. ” Davis v. Washington , 547 U.S. 813, 822 (2006). See also State v. Beasley , 153 Ohio St.3d 497, 2018

- Ohio

- 493, ¶ 183 (even

“ [s] tatements to police officers responding to an emergency situation are generally considered nontestimonial preci sely because the declarant is usually acting

— under great
emotional duress

— to secure protection or medical care. ” ). On the other hand
, a statement is testimonial “ when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution

. ” Davis at 822. {¶ 28} On appeal, Walker asserts the content and audience of these statements
indicated there was no ongoing emergency and therefore the statements were testimonial
in nature. Specifically, he asserts Augst ’ s primary purpose in communicating with a government officer while locked in the back of a police cruiser was to “ ‘ [bear] testimony ’ as to what happened to him. ” (Appellant ’ s Brief at 26.) {¶ 29} At the time Augst was recorded making the objected

- to statements , he was
detained in the back of a police cruiser but not under police interrogation. He began hisNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 10

shouting while alone in the cruiser and then m ade statements to a paramedic who arrived

on the scene in the aftermath of the shooting. The paramedi c , Lieutenant Jeff Shaw,
testified at trial that he arrived at the scene with an emergency room physician accompanying him that day for training. ( Dec

. 9 , 2021 Tr. at 447.) Once on the scene, h e and the doctor approached a police car and spoke with a man (later identified at Augst) who appeared to hav e suffered an injury. (Tr. at 448 , 450 .) Lieutenant Shaw recalled that Augst

was “ agitated ” and complain ed about being detained in a hot cruiser with a head injury. (Tr. at 457.) The video shows Augst speaking throughout the assessment, interspersing h is

answers about his injuries to the paramedic with his recollection of what happened. {¶ 30} After Walker ’ s first soliloquy, the video show ed Lieutenant Shaw turning to

someone behind him and mak ing a brief statement

. Although most of that statement is not decipherable, it clearly beg an with “ So, the guy who was shot

. ” ( State’s Ex. K at 14:20:31 to 14:20:36.) The person who receive d the information appeared to be wearing a white shirt and dark trousers, similar to the uniforms worn by Columbus police offic ers, but the record does not establish whether that person was, in fact, a law enforcement officer. Regardless,
the individual walk ed away without addressing Augst after Lieutenant Shaw finishe d speaking. ( Id. ) At trial, Lieutenant Shaw was asked about this encounter. He testified that he could not recall specifically who he spoke with , but acknowledged it could have been the emergency room physician who accompanied him to the scene , a police officer, or another paramedic. (Tr. at 458.) While th e iden tity of the third person remains unclear, Augst ’ s eye contact and body language show his statements were directed to Lieutenant Shaw alone, and the video shows the off

- camera individual approach ed only after Augst
conclude d his first soliloquy

. ( State’s E x. K at 14:20:31 to 14:20:36.) {¶ 31} Ohio courts employ the “ ‘ objective

- witness test ’ for out

- of

- court statements made to a person who is not law enforcement. ” State v. Jones , 135 Ohio St.3d 10, 2012

- Ohio

- 5677, ¶ 161. Under this test, a statement is deemed testimonial if “ the witness would have reasonably believed that her statement would be available for use at a later trial. ” Id

. As we have noted, “ statements made to persons who are not law enforcement about the

cau se of an injury or reasons for emotional upset are generally nontestimonial and do not implicate the federal Confrontation Clause. ” Columbus v. C.G., 10th Dist. No. 19AP

- 121,

2021

- Ohio

- 71 , ¶ 43

. See also State v. Muttart , 116 Ohio St.3d 5, 2007

- Ohio

- 5267 , ¶ 6 1

- 6 3.No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 11

When engaging in this analysis, courts are to “ focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect
a reasonable declarant ’ s expectations. ” State v. Stahl , 111 Ohio St.3d 186, 2006

- Ohio

- 5482, paragraph two of the syllabus. {¶ 32} A statement to medical personnel in the course of seeking and receiving
assistance at the scene of an emergency is unlikely to be testimonial absent an indication the speaker believe s otherwise. The Supreme Court of Ohio has previously declined to expand the categories of testimonial statements enumerated in Crawford to include

“ statements made to a medical professional for purposes of receiving medical treatment or diagnosis
, ” even when the statement at issue identified the perpetrator in the presence of a police officer. See Stahl at ¶ 18. In Stahl , a victim identified the person who raped her to a medical professional during an emergency

- room examination. Although a police offic er was present in the room during the identification, the court concluded the identification
was not testimonial because it was “ elicited during the medical examination, came to a medical professional in the ordinary course of conducting a medical examinat ion, and no
Miranda warnings preceded its delivery. ” Id

. {¶ 33} With this in mind, we conclude Augst ’ s challenged statements in the dashcam footage were not testimonial. Although Augst was confined to a police cruiser, he was speaking to a paramedic rendering m edical aid in the immediate aftermath of his assault and a shooting inside his home. H is excited state i n the video footage indicates reactive, rather than reflexive, thinking. See, e.g. , State v. Taylor , 66 Ohio St.3d 295
, 300 (1993)

. S uch reactivity and excitement suggest the statements were not made in anticipation of their use at trial, but were more akin to unfiltered speech. Additionally, as the S upreme C ourt described in Stahl , statements directed toward medical personnel for a me dical purpose remain nontestimonial, even if law enforcement is present or the information is eventually us ed to prosecute the state ’ s case. {¶ 34} This is true for both of Augst ’ s challenged soliloquys. The f irst challenged soliloquy beg an after the paramedic , gesturing at Augst ’ s head wound, sa id, “ let ’ s see what happened. ” Augst tilt ed his head and explain ed that he was pistol

- whipped. The paramedic
ask ed if he got knocked out during the altercation and Augst launche d into his story in

response , some of wh ich provided information relevant to his medical treatment ( “ They hitNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 12

me with the gun ” ) and some of which wa s not ( “ They took me in the door ” ). ( State’s Ex. K
at 14: 19 : 44 to 14:20:3 0 .) Augst did not speak to a police officer, he exhibited signs of agitation and excitement, and he explain ed the cause and source of his injuries to the individual rendering medical aid. Because the testimonial nature of a statement turns on the expectation of the speaker, these factors indicate Augst did not expect for this statement
to be used at trial. {¶ 35} Augst ’ s second soliloquy wa s a response to a woman off

- camera confirming he was choked after Augst decline d Lieutenant Shaw ’ s offer to be taken to a hos pital. 1 Augst

answer ed, “ Yeah, he choked me. He was threatening [undecipherable] that he was going
to kill me

. ” ( State’s Ex. K at 14: 21 :4 5 to 14:2 1 : 49 .) We cannot say that t he addition of this

sentence render ed the statements testimonial; the y were se amlessly incorporated into his answers to medical personnel about his injuries in the immediate aftermath of his own assault and a shooting in his home and do not suggest he reasonably believed they would
be available for use at a later trial. {¶ 36} Therefore, we cannot say the trial court erred in concluding that Augst ’ s statements were nontestimonial and therefore their admission did not violate the
Confron tation Clause. 2. Hearsay {¶ 37} Having determined Augst ’ s statements were nontestimonial and therefore
the video ’ s admission into evidence did not violate Walker ’ s rights under the Confrontation
C lause , we next consider whether his statements were impermissible hearsay and
, if so, whether they satisfied one of the hearsay exceptions in Evid.R. 803. {¶ 38} 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 in the statement. ” Hearsay is inadmissible unless excepted under a specific constitutional, statutory, or legal authority. See Evid.R. 802. Because Augst did

1 On cross

- examination, Lieutenant Shaw was only asked about the identity of the individual to whom he relayed Augst ’ s statement. ( See Dec. 9, 2021 Tr. at 458.) Counsel did not ask whether he could identi f y the off

- camera female speaker who asked if Augst was choked. However, Lieutenant Shaw was asked to identify the woman standing behind him in the state ’ s Exhibit K2, a still image taken as the two approach ed the cruiser with Augst . He affirmatively identifie d the woman as the training emergency room physician accompanying him that day. (Tr. at 450.) Regardless, Walker does not argue on appeal that the woman speaking at 14:21:42 was law enforcement and thus su bject to a different Confrontation Clause analysis.No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 13

not testify at Walker ’ s trial and his statements wer e used at trial to prove the truth of the

matter they asserted, the statements contained in the video qualify as hearsay

. However, the trial court found they were admissible on several bases. {¶ 39} During trial, in addition to raising the Confrontation Clause as described above, Walker ’ s counsel objected to admission of the dashcam footage, asserting it was impermissible hearsay and did not satisfy one of the enumerated exceptions in Evid.R. 803. In response, the state asserted, and the trial court agreed, that although the statements were hearsay, they fell under two exceptions

— the exception for excited utterances under
Evid.R. 803(2) and the exception for statements for purposes of medical diagnosis or

treatment under Evid.R. 803(4). We review the trial court ’ s determination for an abuse of
discretion. See, e.g. , State v. Sullivan , 10th Dist. No. 10AP

- 997, 2011

- Ohio

- 6384 , ¶ 56.

a. Excited Utterance Exception Under Evid.R. 803(2) {¶ 40} We apply a four

- part test to dete rmine whether a statement qualifies as an

“ excited utterance ” under Evid.R. 803(2) : (1) there must occur an event startling enough to

cause nervous excitement in the declarant; (2) the statement must be made while the
declarant was still in a state of exci tement caused by the startling event ; (3) the statement must relate to the startling event; and (4) the declarant must have personally observed the startling event. State v. Hughes , 10th Dist. No. 14AP

- 360, 2015

- Ohio

- 151 , ¶ 33 ; accord Taylor
, 66 Ohio St.3d 295 (1993)

. With respect to the second prong, the Supreme Court has explained that “ [t] here is no per se amount of time after which a statement can no longer be considered to be an excited utterance. The central requirements are that the

statement must be made while the declarant is still under the stress of the event and the
statement may not be a result of reflective thought. ” (Emphasis sic.) Taylor at 30 3

. When making this determination, a court may also consider “ the mental and physical condi tion of the declarant, the nature of the statement, and the influence of any intervening
circumstances. ” Hughes at ¶ 33. {¶ 41} Walker does not contest that the challenged statements in the video satisf y the first and fourth prongs of the excited utterance test , because Augst personally observed
and was harmed during the assault and shootings

— events that would tend to induce a
nervous excitement in an y person

. (Appellant ’ s Brief at 35.) See also C.G

. , 2021

- Ohio

- 71 at ¶ 33, quoting State v. Mauldi n , 7th Dist. No. 08

- MA

- 92, 2010

- Ohio

- 4192, ¶ 73 ( “ ‘ AnNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 14

assault is a startling event. ’ ” ). Instead, Walker challenges whether Augst was still in such

a nervous or excited state by the time he made the recorded statements , and whether the

statements related to the startling occurrence. ( Appellant’s Brief at 35

- 36.) {¶ 42} Officer Daniel Yandrich testified at trial that he received a dispatch about a shooting at 2:07 P.M. on July 24, 2020
, and it took him approximately three minutes to
drive to the scene

. (Tr. at 503

- 04.) He was the first to arrive and had his gun drawn when
he exited the cruiser. (Tr. at 505.) Once there, Officer Yandrich saw two individuals in the front yard, one of w

hom (Augst) was bleeding from a head wound. ( Id .) He testified that other officers began arriving within minutes and the individuals from the front yard were secured in separate cruisers while officers completed a sweep of the scene. (Tr. at 508.) At

s ome point after Lieutenant Shaw arrived on scene, he beg an his assessment of Augst. (Tr. at 448.) He testified that his initial observation was of Augst locked inside a police cruiser,

“ banging on the window, ” “ agitated, ” and bleeding from the wound on his head. (Tr. at 457.) These observations we re corroborated by the dashcam footage

. The video beg an recording at 2:18 P.M. and ran approximately 3 minutes and 47 seconds. ( State’s Ex. K. ) At the beginning of the footag e, Augst wa s undeniably in a heightened state , pounding frantically on the window
, and yelling about his dizziness, his head wound, and the heat
inside the car

. ( State’s Ex. K at 14:18:46 to 14:19:00.) He then shout ed
, “ I just got the fuck pistol

- whipped out of me. I ’ m sitting in a hot ass car, bro. ” ( State’s Ex. K at 14:1 9 : 08 to
14:19: 1 1 .) {¶ 43} On appeal, Walker challenges the trial court ’ s determination as to two specific

statements Augst made during Lieutenant Sha w ’ s examination. He argues there was a point during the discussion with Lieutenant Shaw when Augst transitioned from a reactive
to a reflective state and was therefore no longer acting under the stress of the event. (Appellant ’ s Brief at 35.) Specifically, Walker asserts that the moment Augst was informed by someone off

- camera that “ we ’ re trying to save your dude ’ s life there, bud
, ” he

“ immediately calm [ed] himself ” and focuse d his attention on addressing this new matter. ( Appellant ’ s Brief at 35 , citing State’s Ex. K at 14:19:15 .) {¶ 44} Although Augst ’ s demeanor shift ed at that moment from panicky anger displayed at the start of the video
, we cannot say that his “ nervous excitement ” caused him
“to los e a domination over his reflective faculties

. ” Taylor at 30 1

. Augst began breathingNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 15

rap idly, repeatedly demanded to know who was shot, and appeared to be in a state of shock after learning someone

— possibly one of his friends

— was critically injured during the

encounter. ( See, e.g. , State’s Ex. K at 14:19:15 to 14:19: 30.) The shallow breathi ng, the stiff
, tense body language , and the intensity in his tone of voice continue d until the end of the recording

. {¶ 45} From Peterman ’ s testimony, the timestamp on Ex hibit K, and the emergency dispatch received by Officer Yandrich at 2:07 P.M., we can say with reasonable certainty
that the “ startling event ” and the record ed statements took place within a short period of time, likely between 20 to 30 minutes in total

. However, the amount of time between

events , by itself, is not dispositive of someone ’ s state of mind for purposes of
Evid.R. 803(2)

. As noted above, we may also consider the mental and physical condition of the declarant, the nature of the statement, and the influence of any intervening
cir cumstances. Hughes
, 2015

- Ohio

- 151 at ¶ 33. Augst was almost immediately detained in

a police cruiser once officers arrive d on the scene. The recording beg an with Augst frantically pounding on a window and yelling inside of the locked car. Moreover, he h ad significant injuries, including a bleeding head wound, coupled with the midday heat on a July day in a car with the windows rolled up

. {¶ 46} We cannot say these conditions were an intervening occurrence such that Augst was no longer acting unde r the influence of the nervous excitement caused by his own assault and the shooting in his home. Instead, these conditions exacerbated the panic, stress, and excitement he experienced following the incident

. And, halfway through the dashcam recording, i nstead of gaining his composure once he manage d to get some relief from the heat and speak to a paramedic , he was informed that someone was bleeding out on his living room floor. It appears he wa s momentarily stunned into silence
, and then expressed conce rn that the victim could be one of his friends. Our review of the footage does not reveal a period of time when Augst clearly collect ed himself and regained his
reflective faculties. See C.G . at ¶ 36 ( “ We also cannot find that S.S. ’ s ability to communicate the details of the assault proved that her statements were the product of reflective thought. ” )

. It therefore appears that his state of nervous excitement after the shooting wa s sustained

— not interrupted

— by the subsequent events.No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 16

{¶ 47} For the fore going reasons , the trial court did not abuse its discretion in concluding that Augst ’ s statements fall under Evid.R. 803(2) ’ s excited utterance exception. {¶ 48} Because we conclude the video falls under the hearsay exception for excited
utterances, we need not address whether the statements satisfy Evid.R. 803(4) ’ s exception
for statements made for medical diagnosis or treatment. Accordingly, Walker ’ s first assignment of error is overruled.
B. Second Assignment of Error {¶ 49} In his second assignment of error, Walker argues the evidence is legally insufficient to support his conviction for kidnapping. For the following reasons, w e disagree. {¶ 50} “ Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. ” Cassell , 2010

- Ohio

- 1881 at ¶ 36, citing State v. Thompkins , 78 Ohio St.3d 380, 386 ( 1997 )

. “ The relevant inquiry for an appellate court is whether the evidence presented, when viewed in a l ight most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime proven beyond a reasonable doubt. ” State v. Sherman , 10th Dist. No. 20AP

- 541,

2021

- Ohio

- 4532 , ¶ 28. “ In determining whether a convi ction is based on sufficient evidence, we do not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. ” Cassell at ¶ 37. Accordingly, we do not engage in a credibility determ ination or resolve evidentiary conflicts, but instead consider whether the state presented sufficient evidence as to each element of the crime. State v. Ferguson , 10th Dist. No. 20AP

- 437, 2022

- Ohio

- 1648 , ¶ 49. As a question of law, a challenge to the suf

ficiency of the evidence is reviewed de novo. Sherman at ¶ 28. {¶ 51} On appeal, Walker challenges only the sufficiency of his kidnapping conviction. R.C. 2905.01 states, in relevant part:

(A) No person, by force, threat, or deception * * * 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: * * * (2) To facilitate the commission of any felony or flight thereafter;No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 17 (3) To terrorize, or to inflict serious physical harm on the victim or another [

. ]

{¶ 52} Both parties concede that Walker ’ s kidnapping conviction was reache d under a theory of complicity; specifically, with Walker aiding or abetting Stanton in the commission of kidnapping. 2 ( See Appellee ’ s Brief at 30; Appellant ’ s Brief at 40; Dec. 10,

2021 Tr. at 622, 683.) R.C. 2923.03 (A)(2) codifies the common law princ iple of accomplice liability. Under the statute, “ [n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense. ” {¶ 53} To be convicted as an aider or abettor, the accu sed must have “ supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and * * * shared the criminal intent of the principal. ” State v. Johnson , 93 Ohio St.3d 240, 245

- 46 (2001)

. Therefore, in order to prove complicity to kidnapping, the state had to produce evidence that Walker, act ing with the requisite criminal intent, aided and abetted Stanton in the commission of kidnapping. {¶ 54} The parties do not dispute that Stanton, not Walker, was the individual who restrained Augst. The state asserted at trial that Stanton “ barging into someone ’ s home, putting them in a headlock, and pistol whipping them ” constituted kidnapping under
R.C. 2905.01(A) because he restricted Augst ’ s movements inv oluntarily in order to inflict
harm. (Tr. at 638.) On appeal, Walker challenges the lack of sufficient evidence to support the kidnapping conviction in two respects: (1) insufficient evidence to prove that Stanton committed the underlying offense of kidn apping; and (2) insufficient evidence that Walker acted with the requisite culpability. ( See Appellant ’ s Brief at 42.) 3 {¶ 55} Whether Stanton committed or attempted to commit the underlying offense is a threshold issue to determining whether Walker was complic it in kidnapping. See
R.C. 2923.03(C). In closing argument, the state asserted that Stanton, by force, both

“ removed ” Augst from where he was found and “ restrained ” Augst by pushing him from the doorway to the living room and placing him in a headlock. (Tr. at 639

- 40.) This force, the

2 “ A charge of complicity may be stated in terms of this section, or in terms of the principal offense. ” R.C. 2923.03(F).
3 Because Walker does not challenge the second component of the complicity statut e, our analysis here is confined to whether Walker acted “ with the kind of culpability required for the commission of an offense

. ” R.C. 2923.03(A).No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 18

state assert ed at trial and now asserts on appeal , was used to either facilitate felonious
assault
, or aggravated burglary
, or to terrorize or inflict serious physical harm on Augst. Walker disputes that Stanton used forc e to fulfill either purpose, and instead asserts Augst ’ s restraint or removal resulted from the commission of a felony or the infliction of terror or serious physical harm. ( Appellant’s Reply Brief at 9.) {¶ 56} Through the video of Augst ’ s statement s in the police cruiser and Peterman ’ s trial testimony, the state presented evidence that Stanton made his way inside the house
, placed Augst in a headlock with his left arm, then used the firearm in his right hand to strike Augst. ( State ’ s Ex. K ; Dec . 8, 2021 Tr. at 355, 367.) In light of this record and construing
the evidence in the light most favorable to the prosecution, as we are required to do for a sufficiency challenge, we conclude that the state produced sufficient evidence to prove eac h element of kidnapping with respect to Stanton

. {¶ 57} We next consider whether the state presented sufficient evidence to establish
that Walker acted with the requisite culpability to support his kidnapping conviction. Walker does not challenge whether he aide d or abetted Stanton and we have already concluded that Stanton inflicted serious physical harm on Augst

. Thus, our review is
limited to whether there was sufficient evidence to support the jury ’ s determination of
Walker ’ s intent at the time of the kidnapping. {¶ 58} To satisfy the intent element of the offense , the state had to present sufficient
evidence that Walker aided and abetted Stanton with the purpose to facilitate the commission of a felony or flight thereafter
, to terrorize , or to inflict serious physical harm

on Augst

. See R.C. 2905.01 (A)(2) through (3). See State v. Davis , 116 Ohio St.3d 404,
2008

- Ohio

- 2, ¶ 188 ( “ Jurors need not agree on a single means for committing an offense. ” )

. A person acts with purpose when “ it is the person ’ s specific intention to cause a certain
result

. ” R.C. 2901.22(A). The refore, the state must have presented sufficient evidence to

prove that at the time of Augst ’ s restraint or removal
, Walker shared Stanton ’ s purpose to either (1) facilitate a felony or ( 2) terrorize or i nflict serious physical harm

. Purpose or
intent “ may be inferred from the circumstances surrounding the crime, including presence, companionship, and conduct before and after the offense is committed. ” State v. Thompson , 10th Dist. No. 1 0AP

- 593, 2011

- Ohio

- 6725 , ¶ 10, citing State v. Kendricks , 10thNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 19

Dist. No. 10AP

- 114, 2010

- Ohio

- 6041, ¶ 15

. See also State v. Noor , 10th Dist. No. 13AP

- 165,

2014

- Ohio

- 3397 , ¶ 36

. {¶ 59} At trial, the state introduced evidence from before, during, and after the
inci dent to establish Walker ’ s mental state. {¶ 60} With respect to his knowledge of Stanton ’ s plan prior to the incident, the state presented testimony from Howell and Gilcrease. The day before, Howell saw Stanton return to their apartment with a backpack containing drugs and a gun that she had never
seen before. She testified that she later overheard Stanton and Walker arguing over the phone about how they would split the content s of the backpack. ( Dec. 7, 2021 Tr. at 141.)
Howell testified that she and Walker spoke after the incident. Walker told her Stanton went to Augst ’ s house intending to “ check somebody ” after a visit to his mother ’ s house. (Tr. at 142.) Walker told How ell he tried to stop Stanton, but noted that his friend “ did some dumb
shit. ” (Tr. at 143.) Gilcrease also testified at trial about her own conversations with Walker following the incident. She recounted a phone call from Walker explaining that Stanton

w ent to Augst ’ s house wanting to rob someone there
, and, in the course of events, Stanton
was shot. (Tr. at 155.) Like Howell, Gilcrease testified that Walker was initially reluctant to go but believed Stanton “ was going to die ” during the confrontation. ( Id. ) {¶ 61} The jury also heard testimony about what happened once Stanton and
Walker arrived at Augst ’ s home

. Peterman testified that a man he later learned was Stanton knocked on the door of Augst ’ s home that afternoon and accused Augst of going to his
mother ’ s house. ( Dec. 8 , 2021 Tr. at 389.) Eventually, hearing a “ commotion, ” Peterman checked on Augst and s aw Stanton and Augst “ tussling ” in the living room, having moved
inside the house at some point during the argument. (Tr. at 390.) Peterman testified that Augst and S tanton were the only individuals he saw in the living room at that time

. (Tr. at 360.) It is therefore impossible to say with certainty where Walker was at the exact moment
of the restraint. However, Augst ’ s recorded statements from inside the police cruiser use d

“ they ” periodically while recounting his assault. For example, at one point, he state d,

“ They took me in the door

. ” 4 (Emphasis added.) ( State’s Ex. K at 14:19:54.) Augst ’ s

4 I n the dashcam video of his statement, Augst use d both “ they ” and “ he ” interchangeably. For example, he state d, “ They hit me with the gun. * * * And they kept choking me out[.] * * * And he pistol

- whipped me again. ” (Emphasis added.) ( State’s Ex. K at 14:19:54 to 14:20:20 .) When viewed in the light most favorableNo s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 20

neighbor Williams also testified at trial and stated that she saw Walker running from Augst ’ s front yard carrying a gun

. (Tr. at 210.) {¶ 62} From th e testimony of Howell and Gilcrease, the state produced evidence that a backpack with drugs and a gun was stolen from someone associated with Augst
, Walker and Stanton argued about how to divide the contents of the backpack between the two of
them , Stanton took offense with Augst ’ s visit to his mother ’ s house, and Walker
, knowing
his friend planned to rob Augst and could die dur ing this confrontation, accompanied him
into a fraught situation armed with a gun

. {¶ 63} The jury had sufficient evidence to conclude from Walker ’ s conduct that he shared a common purpose with Stanton on the day of the inciden t

. Knowing Stanton was angered to the point he could not be dissuaded, Walker willingly took a gun and got in the

car wit h his friend

. From this evidence, the jury was able to infer that Walker acted with the purpose to harm Augst, either by terrorizing or inflicting serious physical harm, or to commit a felony offense inside Augst ’ s home once they arrived

. {¶ 64} Construed in the light most favor able to the prosecution
, the evidence wa s sufficient to allow a reasonable jury to conclude Walker was complicit in kidnapping. Accordingly, Walker ’ s second assignment of error is overruled.
C. Third Assignment of Error {¶ 65} In his third ass ignment of error, Walker contends that his robbery convictions associated with the handgun thefts should be vacated for two reasons: (1) because grand theft when the property stolen is a firearm or dangerous ordnance under R.C. 2913.02(B)(4), as a more specific offense than robbery under R.C. 2911.02(A)(1) and (B), must prevail pursuant to R.C. 1.51, see State v. Chippe ndale , 52 Ohio St.3d 118 (1990); and (2) because robbery involving a deadly weapon does not include an offense where the only deadly weapon at issue is the object of the theft. We review questions of statutory
construction de novo. State v. Armstrong , 10 th Dist. No. 16AP

- 410, 2017

- Ohio

- 8715 , ¶ 1 4

. {¶ 66} As to the first of his arguments, Walker concedes the Supreme Court has already conclusively addressed this issue in State v. Campbell , 90 Ohio St.3d 320, 331

- 32 ( 2000 )

. Accordingly, we overrule this portion of his third assignment of error.

to the stat e, these statements suggest Walker may have been involved or at least present inside the house when the kidnapping occurred. See Cassell at ¶ 37.No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 21

{¶ 67} As to the second part of his assignment of error, R.C. 1.51 states that “ [i]f a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail. ” “ R.C. 1 .51 comes into play only when a general and a special provision constitute allied offenses of similar import and additionally do not constitute crimes committed separately or with a separate animus for each crime. ” Chippendale at

12 0

. C onvict ing someone of robbery requires a finding that the defendant
, “ in attempting or committing a theft offense or in fleeing immediately after the attempt or offense
, ” acted
in a manner prohibited by R.C. 2911.02 in addition to the theft offense

. Thus , the
commi ssion of a robbery will necess arily result in the commission of a theft. R.C. 1.51 does not require a special or local provision to prevail unless the conflict between the provisions
is “ irreconcilable. ” See Armstrong at ¶ 25. Here, the conduct proscrib ed by the theft and robbery statutes are similar but not irreconcilable. By definition, the offense of robbery requires additional conduct above and beyond the elements needed to satisfy a theft
conviction. Thus, the two statutes do not conflict. {¶ 68} Additi onally
, the conduct underlaying both offenses did not occur in the same
instance. The crime of grand theft was completed when Walker obtained possession of the
firearm beyond the scope of the seller ’ s consent

. The elements of robbery, however, were
not met until Walker , fleeing immediately after committing the offense, had a deadly weapon on his person and under his control. {¶ 69} For the above reasons, Walker ’ s third assignment of error is overruled.
D. Fourth Assign ment of Error {¶ 70} In his fourth assignment of error, Walker contests the sufficiency of evidence
for the firearm specifications associated with the handgun thefts , arguing that he only possessed the firearm after committing the offense to which the specification attached

. However, as Walker concedes, t his issue has already been decided by the Supreme Court in Campbell

. (Appellant ’ s Reply Brief at 13.) Accordingly, Walker ’ s fourth assignment of
error is overrule d.No s . 22AP

- 113, 22AP

- 114, & 22AP

- 115 22

III. Conclusion {¶ 71} Having overruled Walker’s first, second, third, and fourth assignments of error, we affirm the judgment s of the Franklin County Court of Common Pleas. Judgment

s affirmed

.
LUPER SCHUSTER and MENTEL
, J J., concur.