Youngstown Daily Legal News

Court rejects appeal from man who attacked girlfriend

ANNIE YAMSON
Special to the Legal News
Published: January 28, 2014

A panel of judges in the 10th District Court of Appeals affirmed a defendant’s convictions for domestic violence and abduction recently when it overruled his claims that the Franklin County Court of Common Pleas should not have admitted a recording of a 911 call into evidence.

The appellate panel also found there was no merit to arguments that the convictions were against the sufficiency and manifest weight of the evidence.

It did, however, support claims from the state that the offenses should not have merged for sentencing and the case was remanded for resentencing.

The defendant, Ashon McClain, was indicted on one count of abduction and one count of domestic violence.

He pleaded not guilty but waived his right to a jury trial.

The indictment stemmed from allegations that McClain beat his live-in girlfriend, Christina Palmer.

During the bench trial, Palmer testified that she met McClain in March 2012 and they immediately started dating.

The two moved in together in May or June of that year.

Shortly thereafter, McClain went to jail for a short time because of domestic violence against Palmer, but the two continued to live together after he was released.

Then, Palmer did a short stint in jail for a theft offense and moved in with McClain again after her release but at a different address.

On the evening of the incident leading to McClain’s arrest, the couple was drinking beer and using cocaine.

Palmer told the court that she “had a line or two” of cocaine every hour for about five or six hours.

Around midnight, they were visiting a friend when McClain told Palmer that she was making him angry, called her an array of names and then punched her in the thigh.

Palmer responded by collecting her things and leaving the apartment.

She made it past three buildings when McClain caught up with her and tackled her on the sidewalk.

He put his knee on her thigh, wrapped his hands around her neck and choked her, punched her in the face and pulled her hair out.

Palmer said that she could feel her rib crack under McClain’s knee.

When Palmer screamed for help, Terry Simmons, who lived in a nearby apartment building, came to her aid.

He held a machete to McClain, told him to get off of Palmer and called the police.

When the police and medics arrived, Palmer refused to go to the hospital but a doctor later told her that she had a broken rib.

She admitted that there were times during that night that she was “fuzzy” because of the drugs, but testified that she was “more alert than not.”

Two witnesses testified that they saw McClain on top of Palmer when they heard screams and looked outside their apartment window.

However, they admitted that they could not tell whether McClain was holding Palmer down or helping her up.

Despite McClain’s objection, the trial court admitted a recording of the 911 call that Simmons made to the police.

During the call, he told the operator that the man was “drunk” and “beating the hell out of this girl.”

McClain was subsequently found guilty of both counts and the trial court merged the offenses and sentenced him to three years in prison.

Upon appeal, McClain claimed that the trial court committed error when it admitted the 911 recording.

The appellate panel, however, sided with the trial court, which found that, under state evidentiary rules, the recording was admissible based on the excited utterance exception to the hearsay rule.

McClain contended that the Confrontation Clause prohibited admission of the recording.

The clause provides that “in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.”

It also bars the admission of testimonial statements unless the witness appears at trial or the defendant had a prior opportunity for cross-examination.

Judge Amy O’Grady, writing on behalf of the court of appeals, cited the U.S. Supreme Court, which has held that statements in a 911 call made during the course of an emergency are not testimonial and, therefore, not barred by the Confrontation Clause.

McClain, on the other hand, claimed that there was no ongoing emergency when Simmons placed the call.

He stated that, at that point, he had surrendered and backed away from Palmer because he was faced with a machete.

“The operator’s interrogation was informal, and any reasonable listener would conclude Simmons’ statements were made in the face of an ongoing emergency,” wrote Judge O’Grady. “Thus, we conclude Simmons’ statements to the 911 operator were not testimonial and, therefore, not barred by the Confrontation Clause.”

The appellate panel also ruled that McClain’s conviction was not against the sufficiency and manifest weight of the evidence because the trial court heard testimony from several witnesses and it was up to the trier of fact to choose who it would believe.

The court of appeals upheld the state’s cross-appeal, which argued that McClain’s offenses should not have merged for sentencing.

It found that the domestic violence and the abduction were two separate and distinct acts and the court should have sentenced him separately on those charges.

McClain’s sentence was therefore reversed and the case was remanded for the trial court to separate the convictions and sentence McClain accordingly.

Judges William Klatt and John O’Connor concurred.

The case is cited State v. McClain, 2013-Ohio-93.

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