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«STATE OF OHIO, : APPEAL NOS. C-070776 C-080214 Plaintiff-Appellee, : TRIAL NO. B-0702805 vs. : D E C I S I O N. AURIA MORALES, : Defendant-Appellant. ...»

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[Cite as State v. Morales, 2009-Ohio-1800.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-070776

C-080214

Plaintiff-Appellee, :

TRIAL NO. B-0702805

vs. :

D E C I S I O N.

AURIA MORALES, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Appellant Discharged in Part Date of Judgment Entry on Appeal: April 17, 2009 Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Appellee, Robert R. Hastings, Jr., for Appellant.

Please note: This case has been removed from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

SYLVIA S. HENDON, Judge.

Defendant-appellant Auria Morales was convicted of complicity in the {1} murder of her boyfriend, Michael Brantley, and of conspiracy to commit Brantley’s murder. Morales now appeals. We affirm her conviction for complicity to murder, but reverse her conspiracy conviction and discharge her from further prosecution on that count.

Morales and Her Boyfriend Fight During the late evening and early morning hours before Brantley was {2} murdered, Morales and Brantley had had a heated argument at Morales’s apartment over sexually explicit text messages that Brantley had received from another woman.

Morales’s friend Deshawn Grant testified that he and Morales had talked on the phone around 2:44 a.m, that Morales had sounded extremely angry and frustrated, and that she had asked him for a gun. Phone records admitted into evidence corroborated Grant’s story. Grant did not have a gun, nor did he see Morales that morning. Around 3:00 a.m., Morales’s mother, Michelle Clark, who also lived at the apartment, called for emergency assistance because Morales and Brantley’s fighting had escalated.

Some time after 3:00 a.m., Morales left her apartment and drove to a {3} Shell gas station just up the street. At trial, the state used phone records to establish that, less than an hour before leaving for the gas station, Morales had called a man named Dante Harris. The state argued that she had called Harris to meet her. Shell worker Christopher Sisk testified that a group of young men had been “hanging out” at the Shell station for approximately 30 minutes when Morales arrived. Sisk further testified that Morales had appeared extremely distraught. According to Sisk, it appeared that Morales knew one of the men because she had hugged and leaned up

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against him. After talking with Morales for a few minutes, Sisk saw the men get into a purplish-colored car and follow Morales out of the Shell station, turning in the direction of Morales’s apartment. Brantley was at the apartment and was apparently outside waiting for a taxi cab to arrive.

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At trial, the state played a recording of an emergency 9-1-1 call Brantley had made at 3:28 a.m. On it, he said that he had been shot, asked several times for immediate help, faded in and out of consciousness, and was unable to follow even simple instructions from the emergency operator. He died shortly thereafter from excessive blood loss. During the call, Brantley stated that his girlfriend had had him shot.

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well as several neighbors. Investigating officers LeRay and Butler interviewed Clark at the scene. Clark initially denied that she or Morales had been home when Brantley was shot. She told police that she had been driving Morales to a “safe house” to get her away from Brantley, and that she had just returned. Clark later told police that she had been at home when the shooting had occurred. Clark also gave police other details from that evening, telling them that Morales and Brantley had fought. At trial, the defense unsuccessfully claimed that Clark’s statements, which were testified to by several police officers, constituted inadmissible hearsay.

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different from her mother’s. She first stated that she and Brantley had been outside fighting when a stranger had walked up and had asked if she needed help. The stranger then, according to Morales, said, “Baby, you ain’t gotta go through that,”

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and shot Brantley. Morales later changed her story, telling police that she had been at the Shell station when this conversation had occurred, and that the shooter—a stranger—must have followed her home.

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witnessed Morales and Brantley fighting and had seen Morales drive off in the direction of the Shell station. She testified that, within five to ten minutes of Morales driving away, she had heard gunshots. Another neighbor, Carla Goines, testified that the sound of gunshots had awakened her, that she had seen a number of men running up the street, and that she had seen a man jump into the driver’s seat of a dark colored car that was parked in a driveway a few doors down from Morales’s apartment. Goines stated that she had heard one of the men say “come on, come on.”

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commit murder. Over defense counsel’s objection, the trial court sentenced her on both counts, making the sentences concurrent, for a total of 15 years to life in prison.

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sixth assignment of error has merit. We address it first.

{10} In her sixth assignment of error, Morales first argues that she was improperly convicted of both complicity to commit murder and of conspiracy to commit murder. She is correct. Under R.C. 2923.01(G), “[w]hen a person is convicted of committing or attempting to commit a specific offense or of complicity in the commission of or attempt to commit the specific offense, the person shall not be convicted of conspiracy involving the same offense.” We therefore sustain this

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assignment of error in part, and we reverse Morales’s conspiracy conviction.

Morales is discharged from further prosecution on that count.

{11} Also in her sixth assignment of error, Morales contends that the trial court erred when it ordered her to pay court costs because she was indigent. We find no error. It is within the trial court’s discretion to determine whether to remit costs for an indigent defendant.1 Here, the court conducted a hearing on this issue, considered the arguments of counsel, and then indicated that it was going to assess costs despite Morales’s lack of money, reasoning that Morales was the reason for the costs and should therefore be responsible for them. This argument has no merit. We overrule the balance of this assignment of error.

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{12} Morales’s remaining assignments of error are either moot or meritless.

{13} In her first assignment of error, Morales contends that her indictment did not properly charge conspiracy. Since we have reversed Morales’s conspiracy conviction, this assignment of error is moot.2

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{14} Morales’s second assignment of error challenges the sufficiency of the evidence. Viewing the evidence in a light most favorable to the state, we hold that a rational trier of fact could have found beyond a reasonable doubt that Morales had encouraged, solicited, or aided Brantley’s unknown assailant in committing murder.3 The state’s evidence showed that Morales and Brantley had argued, that Morales had sought a gun, and that, after making some phone calls, Morales had left her 1R.C. 2947.23; State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, 23;

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

2 App.R.12(A)(1)(c).

3 See R.C. 2923.03 and 2903.02(B); State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

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apartment and had met someone she seemed to know at a nearby Shell station.

Several men who were at the Shell station followed Morales out of the Shell parking lot and, a short later, a neighbor had heard gunshots. Another neighbor, Goines, had heard the gunshots and then had witnessed men running and getting into a car similar to the one seen following Morales out of the Shell station. Also, Brantley had told the emergency operator that his girlfriend had had him shot. Finally, Morales had given police inconsistent accounts of what had occurred that night. This was sufficient evidence to convict Morales of complicity to commit murder. We therefore overrule this assignment of error.

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{15} In her third assignment of error, Morales claims that the tape of Brantley’s 9-1-1 emergency call should not have been admitted into evidence. We hold otherwise.

{16} Brantley’s statement that his girlfriend had had him shot was admitted as a dying declaration. A dying declaration is “a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death.”4 Morales contends that the state had failed to establish that Brantley had believed that his death was “imminent.” We note that it is often difficult to determine if a declarant sensed his or her death rapidly approaching. But we hold that the facts of this case were sufficient to provide a proper foundation for the admission of a Brantley’s statement.5 Brantley had been shot twice. On the tape of the emergency call, he had asked over and over for immediate medical help, and he had faded in and Evid.R. 804(B)(2).

4 Cf. State v. Craft, 4th Dist. No. 04CA589, 2005-Ohio-3944, 26-28.

5

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out of consciousness several times. He had been unable to follow a simple instruction to remove his shirt and press on his wound. He was bleeding profusely.

He died shortly thereafter. We therefore hold that the trial court did not abuse its discretion in admitting this statement as a dying declaration.6 {17} The dissent makes the point that the requirement that a declarant sensed that his or her death was “imminent” is a stringent one. We believe that this requirement was met here but, even if it was not, the statement could have been properly admitted as an “excited utterance.” Any error in the admission of the statement as a dying declaration, therefore, was harmless. Under Evid.R. 803(2), “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is admissible as a hearsay exception. The statement, however, must pertain to an occurrence that the declarant had an opportunity to personally observe.7 In this case, it can not be disputed that Brantley was under the stress of a startling condition—he had just been shot twice. And Morales admitted that she had been at the scene of the shooting.

Under these circumstances, we do not find it to be a leap of logic, as the dissent does, that Brantley had personally observed that Morales had had someone shoot him.

{18} The trial court did not err in admitting the tape of Brantley’s emergency call. Morales’s third assignment of error is overruled.

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{19} In her fourth assignment of error, Morales claims that the trial court erred by admitting testimony from witnesses other than Clark concerning Clark’s statements to them. Clark was available as a witness, but four police officers—LeRay, State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus.

6 State v. Huertas (1990), 51 Ohio St.3d 22, 31, 553 N.E.2d 1058; Potter v. Baker (1955) 162 Ohio 7 St. 488, 124 N.E.2d 140, paragraph two of the syllabus.

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Butler, Dudley, and Luke and state’s witness DeShawn Grant each testified to her statements. Morales asserts that this testimony was inadmissible hearsay. We hold that some of the testimony should not have been admitted, but that the error was harmless.

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{20} “There are situations where an officer may testify to the substance of what seems to be a hearsay statement in order to explain his or her conduct while investigating a crime.”8 Such statements are generally not hearsay because they are not being used to prove the truth of the matter asserted.9 But such testimony is not automatically admissible simply because it is not hearsay. To be admissible, the testifying officer must explain what he or she did as a result of the statement.10 “The potential for abuse in admitting such evidence is great, thus, the [officer’s] conduct to be explained must be relevant, unequivocal, and contemporaneous with the statement.”11 {21} With these standards in mind, we conclude that the trial court properly admitted testimony by police officers LeRay and Butler. These officers had responded to the scene of the shooting. There, Clark had told them that Morales and Brantley had been fighting, and that she had been taking Morales to a “safe house” when the shooting had occurred. LeRay and Butler each testified that, based on Clark’s statements, they had had Clark take them to see Morales. We find no error in the admission of their testimony.

{22} But the trial court did err in admitting the testimony of officers Dudley and Luke. Dudley was not a part of the criminal investigation, per se. Instead, she was assigned to sit with Clark at the police station to make sure that Clark did not talk to State v. Davenport (July 30, 1999), 1st Dist. No. C-980516.

8 See Evid.R. 801(C).

9 10 Davenport, supra.

11 Id., citing State v. Blevins (1987), 36 Ohio App.3d 147, 149, 521 N.E.2d 1105.

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anyone about Brantley’s murder. Clark had told the same story to Dudley as she had to officers LeRay and Butler. But her statement had had no immediate effect on Dudley.



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