[Cite as State v. Santellana , 2020-Ohio-5041.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1088 Appellee Trial Court No. CR0201802824

v. Emilio Santellana DECISION AND JUDGMENT Appellant Decided: October 23, 2020

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appel lee. Sarah Haberland, for appellant.

* * * * * SINGER, J. {¶ 1} Appellant, Emilio Santellana, appeals from the March 25, 2019 j udgment of the Lucas County Court of Common Pleas convicting him, followin g a jury trial, of aggravated burglary with a firearm specification, R.C. 2911.11( A)(2) and (B) and 2941.145(A), (B), (C), and (F). The court sentenced appellant to serve nine years of2. imprisonment and three additional years for the firearm specifi cation. For the reasons which follow, we affirm. {¶ 2} On appeal, appellant asserts the following assignments of error : I. The trial court abused its discretion at sentencing, by fa iling to

access all of the factors in accordance with R.C. 2929.11 and R .C. 2929.12. II. The trial court abused its discretion in sentencing, by s entencing in a manner that was clearly and convincingly contrary to Ohio law. III. The trial court erred in allowing into evidence inadmiss ible hearsay, denying appellant his constitutional right to confront witnesses. {¶ 3} The following evidence was admitted at trial. The jury listene d to the 911 call made by the victim on July 21, 2018. The victim stated he had been robbed at gunpoint by two men who kicked in his door and stole the victim ’s Xbox and PlayStation 4. He described the robbers as Hispanic and black males who wo re masks over their heads and brandished guns. He further stated the men left in a black car and the victim

indicated their direction of travel. {¶ 4} A Toledo police officer who responded to the call testified he spoke to the victim shortly after the 911 call and found he was still in an excited state when he stated that two men dressed in black and wearing masks had entered his apartment through an unlocked door while he and a guest were present. The two men h eld the victims at gunpoint while the men stole items and then fled in a dark-colo red, boxy SUV type vehicle. Another officer who took over the investigation visit ed the victim’s home a3. short time later. The victim stated the men took an Xbox, othe r game consoles, a clear plastic bin filled with dog food, and a wallet. The victim des cribed the intruders as a black male with braids and a Hispanic man, both wearing black c lothing, and he indicated the men fled in a black, boxy SUV, perhaps a Jeep. {¶ 5} Other officers observed the described vehicle about 35 minutes later and made a traffic stop. As the officers approached the vehicle, t he driver sped away. Another patrol car pursued the vehicle at a high rate of speed throughout the residential area for about ten minutes through stop signs and red traffic l ights. Eventually, the occupants were apprehended when the Jeep crashed into a bridge abutment. Appellant was the driver of the Jeep. A recording of the chase was submi tted to the jury. {¶ 6} A second 911 call was received from a bystander who observed an occupant of the black vehicle being chased by the police throw a gun fro m the car. Another officer spoke with the bystander and photographed the area before retri eving the gun from the sidewalk and removing ammunition from the gun. Insufficient DN A was recovered from the gun for testing. The gun was also test fired and determine d to be inoperable. However, the investigating officer testified the gun could have been damaged after having been thrown from the vehicle during the chase. He furth er testified he would have requested a trace on the ownership of the gun, but could not re call if it was ever completed. {¶ 7} The items described by the victim were found in the vehicle. T he victim was also taken to the scene where he could not identify appella nt, but did identify the4. necklace appellant was wearing as the victim’s necklace. Appel lant was photographed shortly after the crash wearing the necklace. The car was regi stered to appellant’s mother. Also found in the vehicle were what appeared to be sle eves cut from a t-shirt, which the investigating officer believed were used as masks. W hen appellant was removed from the vehicle, he was wearing a gray t-shirt and gra y sweat pants. However, also found in the Jeep was a bag containing a black t-shirt and black tennis shoes which were not examined for DNA. The other occupant was wearing dark -colored clothing. {¶ 8} In his first assignment of error, appellant asserts the trial c ourt erred as a matter of law by failing to assess all of the factors enumerate d in R.C. 2929.11 and 2929.12. He asserts that the trial court did not consider appe llant was a youthful offender who had acknowledged his substance use dependency or that the c urrent charges were the only adult felony offenses he had committed. {¶ 9} Our standard of review is limited by R.C. 2953.08(G)(2) to whet her the trial court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I) are supported by clear and convincing evidence in the record an d whether the sentence is contrary to law. {¶ 10} Before imposing a sentence the trial court must consider the re cord, any information presented at the hearing by the victim or defendant , a presentence investigation report, if prepared, and any victim impact statem ent made pursuant to R.C. 2947.051. R.C. 2929.19(B)(1).5. {¶ 11} If the trial court complied with the statutory policies governi ng felony sentencing by considering the factors set forth in R.C. 2929.11 (the principles and purposes of felony sentencing) and R.C. 2929.12 (the seriousnes s and recidivism factors) and determined a prison term is consistent with the principles and purposes of sentencing and imposed a sentence within the statutory range pursuant to R .C. 2929.14, the sentence is not clearly and convincingly contrary to law. State v. Kalish , 120 Ohio St.3d 23, 2008- Ohio-4912, 896 N.E.2d 124, ¶ 18, abrogated by statute as stated in State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 16 (abuse of discretion standard of review rejected); State v. Tammerine , 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15. {¶ 12} Where the court does not expressly state that it considered the statutory sections or sentencing factors and appellant does not raise thi s issue at trial, we presume the trial court gave proper consideration to the factors unless the defendant shows otherwise on appeal. State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 243; Kalish at ¶ 18, fn. 4; State v. Arnett , 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000); State v. Adams , 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus; State v. Smith , 6th Dist. Sandusky No. S-14-037, 2015-Ohio-1867, ¶ 11. Therefore, the burden is on the defendant to prove otherwise. State v. Cyrus , 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992); State v. Magee , 6th Dist. Sandusky No. S-18-029, 2019-Ohio-1921, ¶ 16. The trial court is not required to speci fy which statutory factors it found to support its determination and the appellate court cann ot substitute its judgment6. for that of the trial court. State v. Polley , 6th Dist. Ottawa No. OT-19-039, 2020-Ohio3213, ¶ 17-18. {¶ 13} In this case, appellant was convicted of aggravated burglary, a felony of the first degree, with a firearm specification. Therefore, the tri al court was required to impose an indefinite prison term with a stated minimum term of 3-11 years, R.C. 2929.14(A)(1)(a), and a maximum term as determined under R.C. 2929.144. The court imposed a nine-year sentence for the offense and a mandatory te rm of three years for the specification. The trial court stated it considered the presen tencing report and heard from appellant’s attorney about appellant’s juvenile record, his you ng age, his lack of parental oversight, and his substance abuse dependency. {¶ 14} While the trial court did not expressly state it was considerin g the factors of R.C. 2929.11 and 2929.12, the court discussed some of the facts applicable to the factors it was required to consider under these two statutory sections. The court found that appellant’s failure to comply with an order or signal of a poli ce officer was the worst form of the offense and endangered many vehicles and persons. Furthermore, the court found appellant’s juvenile record to be “horrendous” and includ ed juvenile felony adjudications. The trial court noted appellant is a youthful o ffender, but also that he was a repeat offender and that the use of a firearm in this case in dicated recidivism was certain. During the trial, the trial court had noted that appe llant displayed no regard or concern for the safety of others during the chase and had used a weapon to facilitate the robbery before discarding it in a neighborhood. The court dete rmined that any sentence7. close to the minimum would fail to adequately protect the publi c from future crime and

would offend the seriousness of the offenses. The trial court further stated that the only mitigating factor it found significant was appellant’s age. {¶ 15} The failure of the court to reference appellant’s alleged subst ance use dependency, does not establish that the court did not consider it during its evaluation of the sentence. Upon a review of the record, we find the court c onsidered the statutory sentencing factors and, therefore, the sentence was not contrar y to law. Appellant’s first assignment of error is found not well-taken. {¶ 16} In his second assignment of error, appellant argues the trial c ourt abused its discretion in sentencing. He argues the trial court never cons idered that: there were two perpetrators in this case and no evidence regarding who was the primary aggressor; the victim only identified appellant by the necklace he was wearing ; the gun was inoperable; and appellant was young and had a substance use dependency. {¶ 17} Again, our standard of review on appeal is whether the sentence was contrary to law. State v. Steck , 6th Dist. Wood No. WD-13-017, WD-13-018, 2014- Ohio-3623, ¶ 14. As found above, there is nothing in the recor d to support a finding that

the trial court did not consider the factual evidence in this c ase and facts relating to appellant before imposing a sentence. Therefore, appellant’s s econd assignment of error

is found not well-taken. {¶ 18} In his third assignment of error, appellant argues the trial co urt erred in allowing into evidence inadmissible hearsay, denying appellant his constitutional right to8. confront witnesses. He asserts the testimony of the officers r egarding the homeowner’s statements made to them was inadmissible hearsay and went beyon d what was necessary to explain their investigation. The essence of appellant’s arg ument is that the victim did not testify and his statements made to the police should not ha ve been admissible under

the Confrontation Clause. {¶ 19} We review the admission of hearsay under an abuse of discretion standard, but alleged errors involving the Confrontation Clause are revie wed de novo. State v.

McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97. {¶ 20} The Sixth Amendment Confrontation Clause guarantees the right o f a

defendant in a criminal action “to be confronted with the witne sses against him.” Therefore, the clause bars the use of testimonial statements ma de, from an objective point of view, “‘“for a primary purpose of creating an out-of-court s ubstitute for trial testimony.”’” State v. Montgomery , 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 87, quoting State v. Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 40, quoting Michigan v. Bryant , 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). See also Ohio v. Clark , 576 U.S. 237, 246, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015) (citations omitted). Such out-of-court testimonial sta tements are generally

inadmissible under the Confrontation Clause unless the declaran t is unavailable and the defense has had a prior opportunity to cross-examine the declar ant. Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177; State v. Ford , 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 214.9. {¶ 21} Under the primary purpose test, we consider whether the stateme nts were “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable poli ce assistance to meet an ongoing emergency” rather to “establish or prove past events po tentially relevant to later criminal prosecution.” State v. Siler , 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶ 30, adopting Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Furthermore, a 911 call made to describe “ current circumstances requiring police assistance” rather than to prove a past fact i s not testimonial and, therefore, does not violate the Confrontation Clause. Davis at 827; Toledo v. Green , 6th Dist. Lucas No. L-14-1093, 2015-Ohio-1864, 33 N.E.3d 581, ¶ 11; State v. Jacinto , 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 71. {¶ 22} In the case before us, appellant challenges the admission of th e officers’ testimonies regarding three out-of-court statements made by the victim: 1) to the responding officer shortly after the robbery; 2) to an investig ating officer who interviewed the victim at his home a short time later; and 3) t o an officer when appellant was apprehended approximately 45 minutes later, which identifie d the necklace appellant was wearing as the victim’s stolen necklace. {¶ 23} We find that all three statements were made in the course of th e investigation of the emergency by the police to provide the off icers with the information needed to apprehend the robbers. Therefore, none of the statem ents violated the

Confrontation Clause.10. {¶ 24} Next, we consider where these same statements were inadmissible under Ohio’s evidentiary rules as hearsay. Hearsay is “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.” Evid.R. 801(C). Generally, hearsay is i nadmissible unless it falls under a specific exception. Evid.R. 802. Evid.R. 803(1) permi ts the admission of a present sense impression, “[a]statement describing or explainin g an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter

unless circumstances indicate lack of trustworthiness.” Evid.R . 803(2) permits the admission of an excited utterance, “[a] statement relating to a startling event or condition

made while the declarant was under the stress of excitement cau sed by the event or condition.” Both types of statements must have been made “at t he time of the event or shortly thereafter, the minimal lapse of time between the event and statement reflects an insufficient period to reflect on the event perceived—a fact wh ich obviously detracts

from the statement's trustworthiness.” Cox v. Oliver Mach. Co ., 41 Ohio App.3d 28, 36, 534 N.E.2d 855 (12th Dist.1987). See also State v. Fry , 125 Ohio St.3d 163, 2010-Ohio1017, 926 N.E.2d 1239, ¶ 100; State v. Singleton , 2nd Dist. Montgomery No. 26889, 2016-Ohio-5443, ¶ 44. {¶ 25} Furthermore, when a law-enforcement officer testifies as to an out-of-court statement to explain the course of an investigation, the statem ent is not being used for the truth of the matter asserted and, therefore, is not hearsay. State v. Thomas , 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980); Davis , 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d11. 224. However, such testimony must meet three criteria: “(1) t he conduct to be explained is relevant, equivocal, and contemporaneous with the statements , (2) the probative value of the statements is not substantially outweighed by the danger of unfair prejudice, and (3) the statements do not connect the accused with the crime ch arged.” State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 172 citin g State v. Ricks , 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. General ly, a 911 call is admissible as excited utterances or present sense impressions, exceptions to the hearsay

rule. State v. Jacinto , 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 75. {¶ 26} Appellee asserts it sought to admit the out-of-court statements as nonhearsay because they were not offered for the truth of the matt er asserted but to establish the course of the police investigation. {¶ 27} We find this argument unpersuasive. We agree these three state ments in part establish why the police officers became interested in app ellant’s vehicle and attempted to stop it. However, the state also introduced the s tatements to establish the victim was robbed, what items were stolen, and to connect appel lant to the crime. Therefore, the statements were intended to be used to prove the truth of the matter at issue and were hearsay. {¶ 28} We next consider appellee’s argument that the statements made t o the police were admissible as present sense impressions and excited utterances, exceptions to the hearsay rule under Evid.R. 803(1) and (2).12. {¶ 29} The statements describing the robbery and the stolen property s hortly after it happened while the victim was still upset and for purposes o f providing the officers with the information necessary to apprehend the robbers and ide ntify the victim’s stolen property. Furthermore, the statement identifying the victim’s necklace was also made at

the moment the victim saw it while he was still under stress of excitement from the robbery and police chase. We find that all of these statements were properly admitted under both the present sense impressions and excited utterances exceptions. Accordingly, we find appellant’s third assignment of error not well-taken. {¶ 30} Having found that the trial court did not commit error prejudic ial to appellant and that substantial justice has been done, the judgm ent of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed. A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Arlene Singer, J.

_______________________________ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.