State v. McCormick

[Cite as State v. McCormick, 2026-Ohio-3528.] Released 8/26/26 IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY State of Ohio, : : Plaintiff-Appellee, : Case No. 24CA11 : v. : : DECISION AND Jason R. McCormick, : JUDGMENT ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES: William R. Gallagher and Elizabeth Conkin, Arenstein & Gallagher, Cincinnati, Ohio, for appellant. Jason D. Holdren, Gallia County Prosecutor, Isaac Beller, Assistant Gallia County Prosecutor, and Philip D. Bogdanoff, Special Assistant Prosecutor, Gallipolis, Ohio, for appellee. _____________________________________________________________ Smith, P.J. {¶1} Appellant, Jason R. McCormick, appeals the judgment of the Gallia County Court of Common Pleas convicting him of 28 counts of rape in violation of R.C. 2907.02(A)(2). He raises six assignments of error on appeal, challenging the admission of certain evidence, alleging due process violations, prosecutorial misconduct, and cumulative error, and also challenging the sufficiency and manifest weight of the evidence. His assignments of error are set forth verbatim below. However, because we find no merit to the arguments raised Gallia App. No. 24CA11 2 under any of appellant’s assignments of error, they are overruled and the judgment of the trial court is affirmed. FACTS {¶2} On May 3, 2023, appellant was indicted for 28 counts of rape in violation of R.C. 2907.02(A)(2), all first-degree felonies. The indictment collectively alleged that appellant had raped Jane Doe, a minor, 28 times during a time period beginning on November 1, 2018, and continuing until April 3, 2023. The minor identified in the indictment is M.M., the victim herein, which is appellant’s biological daughter. The indictment stemmed from allegations initially made by the victim to school officials at Buckeye Hills Career Center, where she was a student, claiming that appellant had raped her repeatedly and regularly beginning at age 13 and continuing until the abuse was disclosed in April of 2023, at which time she was 17 years old. {¶3} Appellant retained counsel and the matter proceeded through discovery. On June 7, 2024, the State filed a “Notice of Its Intent to Use Various Evidence That Will Require Rulings of Admissibility.” The notice provided that the State intended to call several school officials as witnesses regarding the disclosures made by the victim at school on the day the initial disclosure of abuse was made. The State separately filed a “Notice of Its Intent to Use the Child’s Forensic Interview and Its Admissibility.” The notice informed the court that the Gallia App. No. 24CA11 3 victim was interviewed by a forensic interviewer at Nationwide Children’s Hospital and was subsequently seen by a physician. The notice provided that the State intended to play the video interview during trial and also intended to call the forensic interviewer as a witness. {¶4} The matter proceeded to a five-day jury trial beginning on June 10, 2024. On the morning of the first day of trial, the parties and court addressed several pretrial matters, including the State’s intent to introduce the video of the forensic interview of the victim. The defense argued that the majority of the interview was for investigative purposes and should not be played for the jury. The defense also raised a potential Crawford violation. The State argued that the statements made by the victim during the interview were for purposes of medical treatment and diagnosis. It was ultimately agreed that an in-camera statement-by- statement review of the video would need to take place prior to the introduction of the video. {¶5} The State’s notice of intent to have school officials testify to the disclosures made by the victim was also addressed prior to the start of trial. The State argued that the victim’s statements it intended to introduce through the testimony of the school officials were made during an ongoing emergency and therefore were admissible as excited utterances. The defense argued that the statements did not constitute excited utterances and therefore were inadmissible Gallia App. No. 24CA11 4 hearsay. The defense further argued that the startling occurrence for purposes of the excited utterance analysis was the underlying sexual abuse itself and that the last alleged incident occurred on April 3, 2023, while the disclosures were not made until April 21, 2023. The defense also argued that the statements could not constitute excited utterances, claiming that testimony by the victim’s friend, Gracie, indicated the victim had gone to school on the morning at issue with a prior plan to disclose the abuse and, therefore, the statements at issue were planned and not spontaneous. {¶6} It became apparent during these arguments that the parties were in disagreement as to what specific event constituted a “startling occurrence” for purposes of determining whether the statements were admissible under the excited utterance exception to the rule against hearsay. The defense argued that, based upon Gracie’s testimony, the victim and her biological mother devised a plan whereby the victim would inform school officials that she was being sexually abused.1 The State, however, argued that a safety plan devised between the victim and her mother consisted of the victim’s mother contacting the victim’s paternal grandfather to ask if the victim could come and live with him, and to also ask that he go and pick the victim up from school on the day at issue. The State argued that 1 The record indicates that the victim’s biological parents split up when the victim was a young child and the victim initially moved out of state with her mother. At some point thereafter, possibly when the victim was between five and seven years old, the victim began living with appellant full time and had no more contact with her mother until April of 2023, at which point she was able to make contact with her through her friend’s social media account. Gallia App. No. 24CA11 5 the failure of the safety plan, which was evidenced by the victim’s stepmom showing up at school to pick to her up early rather than the victim’s grandfather coming to pick her up, constituted a startling occurrence which prompted the victim to disclose the abuse to school officials. The trial court deferred ruling on the issue at that time, instead stating “we’ll have to see how it all plays out.” {¶7} At that time, voir dire began. After a jury was seated, arguments regarding the admission of the victim’s statements as excited utterances resumed, as did arguments regarding what constituted the “startling occurrence.” After hearing further arguments, the trial court ultimately found that the startling occurrence was the failure of the safety plan coupled with the victim being extremely frightened to be put back into the situation she was trying to get out of. The court noted appellant’s objection and the State presented its case. {¶8} The State presented 14 witnesses, as follows: 1) Rebecca Stump, the victim’s teacher at Buckeye Hills Career Center; 2) Gracie Halley, the victim’s friend and classmate; 3) Lisa Lewis, the dean at Buckeye Hills; 4) Brandy Stevens, a school counselor at Buckeye Hills; 5) Chris Gruber, a jail commander at the Gallia County Sheriff’s Office; 6) Seth Argabright, a sergeant in the Gallia County Sheriff’s Office; 7) Sharon Denny, the victim’s biological mother; 8) Nicole Augsback, a forensic scientist in the DNA section at the Ohio Bureau of Criminal Investigations (hereinafter “BCI”); 9) Jordan Shaffer, a Gallia County Deputy Gallia App. No. 24CA11 6 Sheriff and also the Buckeye Hills School Resource Officer; 10) Justin Rice, a detective with the Gallipolis Police Department; 11) M.M., the victim herein; 12) Adam Holcomb, a lieutenant in the Gallia County Sheriff’s Office; 13) Shallon Schuldt, a detective with the Gallia County Sheriff’s Office; and 14) Michelle Hasenkamp, a masters degreed social worker and forensic interviewer employed by Nationwide Children’s Hospital. {¶9} Stump, Lewis, Stevens, and Shaffer all testified regarding the victim’s demeanor on the morning that the disclosures were made to school officials and also testified regarding the victim’s statements. Over objections by the defense, the victim’s statements were admitted through their testimony as excited utterances. The testimony of each of these witnesses will be fully recounted below under our analysis of appellant’s first assignment of error. Denny, the victim’s biological mother, testified regarding the manner in which she came into contact with the victim prior to the disclosures, as well as her role leading up to the disclosures and her role thereafter. Augsback testified regarding the DNA evidence that was recovered from the appellant’s bed comforter and explained her analysis of that evidence and the results thereof. Hasenkamp testified regarding the forensic interview she conducted of the victim and portions of the video of that forensic interview were played for the jury. Gallia App. No. 24CA11 7 {¶10} Importantly, the victim testified at length at trial. She testified for a number of hours and her testimony covers over 300 pages of the 1500-page trial transcript. She testified in detail regarding the history of both physical abuse and sexual abuse inflicted upon her by appellant. Her testimony will also be incorporated more fully below, as pertinent to our analysis of appellant’s assigned errors. The State thereafter rested its case, followed by the defense, who rested its case without presenting any evidence. {¶11} The jury ultimately found appellant guilty on all counts as charged in the indictment. On July 15, 2024, appellant was sentenced to an aggregate minimum prison term of 121 years and an aggregate maximum prison term of 126.5 years. It is from the July 22, 2024 sentencing judgment entry that appellant now brings his timely appeal, setting forth six assignments of error for our review. ASSIGNMENTS OF ERROR I. THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING JASON’S HEARSAY OBJECTIONS AND FINDING M.M.’S ANSWERS TO QUESTIONS WHILE AT SCHOOL ADMISSIBLE AS EXCITED UTTERANCES, THEREBY VIOLATING JASON’S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AND HIS FIFTH AMENDMENT RIGHT TO A FAIR TRIAL. II. THE TRIAL COURT ERRED IN ADMITTING M.M.’S FORENSIC INTERVIEW IN ITS ENTIRETY, WHERE PORTIONS WERE NOT SUBJECT TO CROSS- Gallia App. No. 24CA11 8 EXAMINATION, THEREBY VIOLATING JASON’S RIGHTS UNDER THE TO [SIC] DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, HIS FIFTH AMENDMENT RIGHT TO A FAIR TRIAL, AND HIS SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. III. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED THE PROSECUTOR TO MISSTATE THE DNA EVIDENCE, THEREBY DENYING JASON’S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AND HIS FIFTH AMENDMENT RIGHT TO A FAIR TRIAL. IV. THE CUMULATIVE IMPACT OF THE ERRORS COMMITTED BY THE TRIAL COURT DEPRIVED JASON OF A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION SIXTEEN OF THE OHIO CONSTITUTUION DUE PROCESS CLAUSES. V. WHERE JASON’S CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE, JASON WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH .ANIENDMENT [SIC] OF THE UNITED STATES CONSTITUTION THAT THE STATE PROVE EVERY ELEMENT OF THE CRIME BEYOND A REASONABLE DOUBT. VI. WHERE JASON’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, JASON WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH Gallia App. No. 24CA11 9 AMENDMENT TO THE UNITED STATES CONSTITUTION. ASSIGNMENT OF ERROR I {¶12} In his first assignment of error, appellant contends that the trial court abused its discretion in overruling his hearsay objections and in finding the victim’s answers to questions while at school admissible as excited utterances. He argues that the admission of the victim’s statements to school officials violated his right to due process. The State contends the trial court did not abuse its discretion in admitting the statements as excited utterances and further argues that even if the admission of the statements was in error, the error was harmless as the statements were simply cumulative to the testimony of the victim, who testified at trial. Standard of Review {¶13} Initially, we observe that trial courts typically enjoy broad discretion to determine whether a declaration falls within a hearsay exception. State v. McKelton, 2016-Ohio-5735, ¶ 97 (hearsay rulings ordinarily reviewed for abuse of discretion unless constitutional rights implicated under Confrontation Clause); State v. Dever, 64 Ohio St.3d 401, 410 (1992) (“trial court has broad discretion to determine whether a declaration should be admissible as a hearsay exception”). Appellate courts, therefore, generally will not disturb a trial court's evidentiary ruling unless the court “ ‘has clearly abused its discretion and the defendant has been materially prejudiced thereby.’ ” State v. Obermiller, 2016-Ohio-1594, ¶ 61, Gallia App. No. 24CA11 10 quoting State v. Issa, 93 Ohio St.3d 49, 64 (2001). As we noted earlier, an abuse of discretion implies that a court's attitude is unreasonable, arbitrary or unconscionable. E.g., State v. Clinton, 2017-Ohio-9423, ¶ 60, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Excited-Utterance Exception to the Hearsay Rule {¶14} 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). Hearsay is inadmissible in evidence at trial, unless it falls under an exception to the Rules of Evidence. Evid.R. 802; State v. Maxwell, 2014-Ohio-1019, ¶ 129; State v. Lykins, 2019-Ohio-3316, ¶ 92 (4th Dist.). {¶15} Evid.R. 803(2) contains the excited-utterance exception. This rule permits a trial court to admit a hearsay statement into evidence “if it relates ‘to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.’ ” State v. Fry, 2010-Ohio-1017, ¶ 100, quoting Evid.R. 803(2). A court may admit a hearsay statement under the excited utterance exception under the following circumstances: “(a) there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement of declaration spontaneous and unreflective, Gallia App. No. 24CA11 11 (b) the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) the statement or declaration related to such startling occurrence or the circumstances of such starling occurrence, and (d) the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.” State v. Jones, 2012-Ohio-5677, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus. {¶16} The excited utterance “ ‘exception derives its guaranty of trustworthiness from the fact that [the] declarant is under such state of emotional shock that his reflective processes have been stilled. Therefore, statements made under these circumstances are not likely to be fabricated.’ ” State v. Taylor, 66 Ohio St.3d 295, 300 (1993), quoting McCormick, Section 297 (2d ed. 1972). Additionally, as explained in Taylor, excited utterances “are considered more trustworthy than hearsay generally on the dual grounds that, first, the stimulus renders the declarant incapable of fabrication and, second, the impression on the declarant's memory at the time of the statement is still fresh and intense. Accordingly, Rule 803(2) assumes that excited utterances are not flawed by lapses of memory or risks of insincerity.” Taylor at 300, quoting 1 Weissenberger's Ohio Evidence (1992), Section 803.16. Gallia App. No. 24CA11 12 {¶17} The amount of time that elapses “between the statement and the event is relevant but not dispositive of” whether a declarant's statement occurred while still under the stress of the startling occurrence. Jones at ¶ 168, quoting Taylor at 303; State v. Wallace, 37 Ohio St.3d 87, 90 (1988). In fact, “ ‘[t]here is no per se amount of time after which a statement can no longer be considered to be an excited utterance.’ ” Jones at ¶ 168, quoting Taylor at 303. Instead, “ ‘[t]he 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.’ ” Id., quoting Taylor at 303; Stough v. Indus. Comm., 142 Ohio St. 446 (1944), paragraph one of the syllabus (“A declaration or statement, to be admissible as part of the res gestae, is not required to be exactly simultaneous with the primary fact in controversy, but it must be a spontaneous or an impulsive declaration or statement and not the mere narration of a past transaction.”). {¶18} A court that must determine whether a declarant's statement occurred while under stress of the startling occurrence must examine the particular facts of the case and not “ ‘ “attempt to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation.” ’ ” Jones at ¶ 168, quoting Taylor at 303, in turn quoting State v. Duncan, 53 Ohio St.2d 215, 219-220 (1978). Furthermore, reviewing courts should affirm a trial court's conclusion that a statement fits the Gallia App. No. 24CA11 13 excited-utterance exception when its “ ‘decision appears to be a reasonable one, even though the reviewing court, if sitting as a trial court, would have made a different decision.’ ” Taylor at 305, quoting Potter 499-500. {¶19} In Jones, the Court determined the declarant's statement to be an excited utterance when the evidence showed that the declarant “was highly upset and screaming” when she “blurted out” the circumstances of the startling occurrence (i.e., learning that defendant killed a person). Id. at ¶ 169. The Court concluded that the declarant's demeanor, when making the statement, showed that she remained “under the influence of the startling occurrence when she made her excited utterance.” Id., citing State v. Wallace, supra, at 90-91 (statement excited utterance even though 15-hour interval between startling occurrence and utterance and declarant unconscious for part of that time), and State v. Baker, 137 Ohio App.3d 628, 649 (12th Dist. 2000) (several-hour interval between startling occurrence and utterance); State v. Huertas, 51 Ohio St.3d 22, 31 (1990) (statement excited-utterance when “declarant was ‘very agitated,’ ‘in serious pain’ and ‘had not calmed down’ from the stress of” startling event, i.e., a stabbing). In contrast, simply remaining “upset” after a startling occurrence “does not meet the standard for admissibility under Evid.R. 803(2).” Taylor at 303 (concluding the circumstances that surrounded the declarant's statement suggested he had time to reflect on the event and to give “a narrative account” of the event). Id. Gallia App. No. 24CA11 14 {¶20} However, statements made in response to questions can also be considered excited utterances. See State v. Wallace, supra, at 91 (finding admissibility where the questioning does not negate the spontaneity of the declaration). The Wallace Court determined that declarations may be admitted consistent with the excited-utterance exception to the hearsay rule “provided certain safeguards are met.” Id. at 93. More specifically, the Court held that [T]he admission of a declaration as an excited utterance is not precluded by questioning which: (1) is neither coercive nor leading, (2) facilitates the declarant’s expression of what is already the natural focus of the declarant’s thoughts, and (3) does not destroy the domination of the nervous excitement over the declarant’s reflective faculties. Id. Wallace ultimately found that questions such as “Who hurt you?”, “Do you know what happened to you?”, and “Do you know the name of the person who hurt you?” were questions that “served to facilitate [the victim’s] expression rather than to cause reflection.” Id. Legal Analysis {¶21} As noted above, the arguments raised under this assignment of error challenge the trial court’s admission of certain alleged hearsay statements made by the victim as excited utterances. Appellant argues that the statements themselves do not meet the definition of an excited utterance because they were made as part of a planned disclosure. He further argues that the statements cannot qualify as Gallia App. No. 24CA11 15 excited utterances because they were made in response to various questions being asked by school officials, rather than being made spontaneously. More specifically, appellant challenges the admission of the victim’s statements that were introduced through the testimony of Rebecca Stump, Lisa Lewis, Brandy Stevens, and Deputy Jordan Shaffer, all employees of Buckeye Hills Career Center. {¶22} To summarize, appellant was convicted of 28 counts of rape, the victim of which was his biological daughter, M.M. The victim alleged that the rapes occurred regularly, beginning at age 13 up until she was 17 years old in 2023. The last instance of rape allegedly occurred on April 3, 2023. On April 20, 2023, after initially making contact with her biological mother just a week or so prior, the victim disclosed to her mother that she was being both physically and sexually abused by appellant. The testimony at trial indicated that at the time the disclosure was made to the victim’s mother (Denny), Denny encouraged the victim to either call the police or tell her teachers. Denny further asked the victim if there was anywhere she could go, such as a friend or family member’s house. The victim responded that she believed her grandpa, Paul McCormick (appellant’s father), would help her and let her live with him. Based upon the testimony of both Denny and the victim, it appears that a plan was devised whereby Denny would contact Paul once the victim got on the school bus the next morning and she Gallia App. No. 24CA11 16 would ask him if the victim could live with him and ask him to go pick her up from school. {¶23} It appears from the trial transcript that the victim arrived at school, went to class as scheduled, and had some contact via text message with Denny regarding the plan. Denny informed her that she called Paul and told him what had been happening, but that Paul asked her if he could call her back. An hour or more passed with no return phone call. The victim was aware of this. {¶24} Early in the school day, the victim was called to the office to be ready to leave to go with her stepmom, Heidi, for a doctor’s appointment. Simultaneously, the victim tried to contact Denny and discovered her phone had been disabled. Realizing that the plan had fallen apart, knowing there was no actual doctor’s appointment (because she had never once been taken to the doctor), and believing she was about to be returned home, the victim became extremely upset and stated she did not want to go home. When some students informed the victim’s teacher, Rebecca Stump, that she needed to protect the victim, Stump took the victim into the hallway. {¶25} Stump testified that when this event began, the victim stood up, was shaking, was very upset, and remained so when she was taken into the hallway, at which point the victim told Stump she was afraid to go home. Stump asked school counselor, Brandy Stevens, for assistance and informed Stevens that the victim was Gallia App. No. 24CA11 17 afraid to go home. Stump testified that she and Stevens took the victim into an office, describing the victim as being upset, shaky, and unhappy. Stump testified that Stevens asked the victim why she did not want to go home, to which she responded that she was being physically abused. Stump testified that when the victim disclosed she was being physically abused, her leg was shaking up and down, her hands were shaky, and she had an upset look on her face. {¶26} Stump further testified that immediately thereafter, Stevens went across the hall and got Lisa Lewis, the dean, to assist. While all four were in the room together, Lewis asked the victim what was going on and why she didn’t want to go home. Stump testified that Lewis then requested assistance from Deputy Shaffer, the school resource officer. Stump explained that the resource officer asked the victim what was going on and why she didn’t want to go home. Stump testified that the victim stated she was afraid to go home, was being physically abused, and had been raped. She testified that the victim’s demeanor was the same as when she disclosed the physical abuse just prior. Stump’s testimony was followed by Lewis, Stevens, and Shaffer. {¶27} Lewis, the dean of the school, described the victim’s demeanor as upset, crying, and having trouble walking. She testified that she asked the victim what was going on, to which the victim responded that there was no appointment. She then asked the victim if she was feeling unsafe, to which the victim responded Gallia App. No. 24CA11 18 that her dad had been abusing her, and she didn’t understand why someone was there to pick her up. She testified that the victim kept stating “there is no appointment.” At that time, Lewis called for the resource officer, as the victim’s stepmom was still waiting at the office. {¶28} Brandy Stevens, the school counselor, testified that the victim was very visibly upset, was shaking and crying, and stating she did not want to go home with her stepmom when she encountered her. She asked the victim what was going on, to which the victim stated that she had recently been in contact with her biological mom in order to try to get some help because there was physical abuse going on in her home. The victim further stated that her biological mom was reaching out to her grandpa to see if there was a chance she could go live with him. Stevens testified that, in her opinion, at the time the victim made these statements she was “still visibly very upset, not wanting to go home, almost terrified.” Stevens further testified that once the school resource officer arrived, the victim disclosed there had been sexual abuse as well and she went on to testify that the victim then further disclosed some specific instances of abuse where she had been forced to give appellant oral sex and had been forced to engage in anal sex with him. {¶29} Deputy Jordan Shaffer, the school resource officer, testified that when he encountered the victim, she was scared, was in an “emotional state,” her face Gallia App. No. 24CA11 19 was red, he could tell she had been crying, and wasn’t acting like herself. He asked what was going on, to which the victim responded that Heidi said she had an appointment, but she didn’t have an appointment. Shaffer testified that he called the office and asked them to buy some time with Heidi, who was still waiting. He then stated to the victim “I know you’re scared, you’re upset um, I need to know why.” He then asked if there was abuse. He testified that the victim began crying, was very upset, and said “he’s raping me. My dad’s raping me.” At that point, Shaffer called the police and told Heidi that the victim would not be leaving with her. {¶30} Defense counsel objected repeatedly to the statements of the victim as testified to by Stump, Stevens, Lewis, and Shaffer. The defense argued that these statements were part of a planned disclosure of the sexual abuse, a plan which had been devised between the victim and Denny the night prior. In support of his argument, appellant argued that the victim’s friend, Gracie, had testified there was a “plan” that day that the victim would go talk to the resource officer and see if she could get some help. We note that Gracie’s testimony was at odds with the testimony of both the victim and Denny, who both testified that the “plan” was that Denny would call Paul McCormick and see if he would go pick the victim up from school. Gracie’s testimony was also at odds with what actually occurred that day, considering that the victim went to school and attended her classes as usual, Gallia App. No. 24CA11 20 waiting for a call to be picked up by Paul, rather than going straight to the resource officer. {¶31} Aside from arguing that the statements did not constitute excited utterances because they were planned, the defense argued that the “startling occurrence” for purposes of the excited utterance definition was the underlying sexual abuse, and that it had been weeks since the last alleged rape had occurred. The State, however, argued that the startling occurrence was the victim’s realization that the “safety plan” she had worked out had failed, that her phone had been cut off, and that her step-mom, not her grandpa, was there to pick her up for a doctor’s appointment which the victim knew did not exist. The trial court agreed with the State, finding as follows: Court: I am um, finding that the startling event uh, is that when [the victim] goes to school there’s a safety plan and then once she gets there uh, and she finds out that the safety plan is not going the way it was planned and instead an event happens with her stepmother coming that she is frightened to go with um, and, saying she has an appointment that [the victim] doesn’t know anything about. So the startling event is that the safety plan doesn’t go the way she anticipates and she is extremely frightened to be put back in the situation she’s trying to get out of. Mr. Wiseman: So then would the statement have to relate to the safety plan? Because these statements . . . Court: Well the . . . Gallia App. No. 24CA11 21 Mr. Wiseman: . . . that they’re trying to get in are I’ve been abused back in November of 2018, ’19, ’20, ’21, ’22 and ’23, April of ’23. That has nothing to do with a safety plan. Court: Sure it does. That’s what she’s . . . Mr. Wiseman: It has to do . . . Court: . . . trying to be safe from. {¶32} Appellant contends on appeal that the trial court erred in determining that the startling occurrence was the failure of the safety plan, arguing that the startling occurrence could only have been the sexual abuse itself. Appellant argues that no case in Ohio supports the trial court’s interpretation of the disruption of the safety plan as a startling occurrence. Appellant further argues that the fact there was a plan to report the abuse is what precludes classification of the statements as excited utterances. {¶33} In support of his arguments, appellant primarily relies on State v. Butcher, 2007-Ohio-118 (11th Dist.). Butcher involved the disclosure of sexual abuse by two children, ages five and six. Id. at ¶ 2. While spending the night with their grandmother and after getting out of the bathtub, the girls approached their grandmother, acting agitated and nervous. Id. at ¶ 3. The girls were jumping from one foot to the other, looking at each other and saying “you tell her. No, you tell her.” Id. The girls then said “Oh, lets tell her together. Okay, we’re going to tell Gallia App. No. 24CA11 22 her on the count of three.” Id. The girls then dropped to the floor, “crying and moaning,” and stated “Jerry was sexing with them.” Id. at ¶ 4. When grandma asked who Jerry was, the children said “Jerry, who lives with Aunt Portia.” Id. Grandma questioned the girls further and learned that Jerry had “put his man thing in them,” and that it happened “at Jerry’s house.” Id. at ¶ 5. Grandma then related the girls’ statements to her daughter, the girls’ mother. Id. at ¶ 6. It was determined that the last time the girls had spent the night at Butcher’s house was more than two months prior. Id. at ¶ 30. The trial court permitted the girls’ mother and grandmother to testify at trial regarding the statements the girls made, classifying them as excited utterances. {¶34} Butcher was convicted and appealed. The appellate court ultimately reversed despite the fact that both children testified at trial. In finding the trial court erred in admitting the statements as excited utterances, the court reasoned that the girls simply being “upset,” and not becoming “upset” until after they made their disclosure two months after the abuse had occurred, coupled with the fact that the children deliberated before making the disclosure as evidenced by disclosing the abuse “on the count of three,” did not qualify the statements as excited utterances. Id. at ¶ 29-30, 34. Determining that the statements did not constitute excited utterances, the court did not address Butcher’s further challenge that the statements were the product of questioning. Id. at ¶ 37. Gallia App. No. 24CA11 23 {¶35} Despite appellant’s reliance on Butcher and his urgence that we find that case instructive to the present case, we find the present case to be distinguishable from Butcher. Initially, we note that the startling occurrence in Butcher was the sexual abuse itself that occurred over two months prior to the disclosure. There was no claimed startling occurrence other than the abuse itself in that case, just a decision made by two little girls two months later to finally tell someone. {¶36} Further, although appellant argues that the startling occurrence here could be nothing other than the underlying sexual abuse itself and that no case in Ohio has interpreted a startling occurrence in the manner the trial court did here, even the Butcher court acknowledged that other cases have involved “the ‘startling event’ being not the sexual assault itself, but a subsequent event that caused the ‘stress of the excitement’ of the earlier sexual assault to reoccur.” Butcher at ¶ 33, quoting State v. Dubose, 1989 WL 142916, *2 (Nov. 22, 1989, 8th Dist.) (where the court determined that the startling event was a hand gesture directed at the child by the offender which referred back to a prior incident of gross sexual imposition) and State v. Kincaid, 1995 WL 608407, *4-6 (Oct. 18, 1995, 9th Dist.) (where the court determined that a swat on the victim’s butt by another child constituted a startling event prompting a statement regarding prior abuse that had occurred). See also State v. Nitz, 2004-Ohio-6478 (12th Dist.) (where the court Gallia App. No. 24CA11 24 determined the startling event was an offender’s threat to a child that she “was going to get it bad tomorrow” if she left with her grandmother that night, which was made after the offender had previously scalded the child with hot water). {¶37} In Nitz, the court found that the child’s statement recounting that appellant told her she “was going to get it bad” qualified as an excited utterance in response to a startling event, the startling event being “that appellant, who had scalded her with hot water only one week earlier, had threatened her if she left with her aunt.” Nitz at ¶ 22. After the child’s initial statement in Nitz, she was questioned by her aunt whether what had happened and if her back was hurting. Id. at ¶ 4. The child then disclosed that appellant had burned her by pouring hot water on her out of shampoo bottles. Id. The court likewise found these statements to be excited utterances, reasoning in part that the child