excited utterance exception in Ohio

2025“The excited utterance exception to the hearsay rule exists because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed inherently reliable.” State v. Ducey, 2004-Ohio-3833, ¶ 17 (10th Dist.), citing State v. Taylor, 66 Ohio St.3d 295, 300 (1993).

2024Under Evid.R. 803(2), the excited-utterance exception, “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 “not excluded by the hearsay rule, even though the declarant is available as a witness[.]” “There is no per se amount of time after which a statement can no longer be considered to be an excited utterance.” (Emphasis sic.) State v. Taylor, 66 Ohio St.3d 295, 303 , 612 N.E.2d 316 (1993).

2024Further, “[a] period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited-utterance exception to the hearsay rule.” State v. Wallace, 37 Ohio St.3d 87 (1988), paragraph one of the syllabus.

2019See, e.g., State v. Wallace, 37 Ohio St.3d 87, 90-91 , 524 N.E.2d 466 (1988) (affirming admission of statements as an excited utterance even though there was a 15-hour interval between the startling occurrence and the utterance). {¶ 21} In order to be admissible under the excited utterance exception, “the statement must be made while the declarant is still under stress from the event.” Hopkins at ¶ 37, citing State v. Ducey, 10th Dist.

2019Accordingly, the Supreme Court has determined "the excited utterance exception to the hearsay rule should be applied liberally in a case involving the sexual abuse of a young child." Moore, 2019-Ohio-1671, at ¶ 38 , citing State v. Boston, 46 Ohio St.3d 108, 118 (1989), overruled in part on other grounds in State v. Muttart, 116 Ohio St.3d 5 , 2007- Ohio-5267.

2016Id. {¶66} In State v. Taylor, the Ohio Supreme Court addressed directly the timeliness requirement for a statement to be admissible pursuant to the excited utterance exception to the hearsay rule.

1993The United States Supreme Court held in White v. Illinois (1992), 502 U.S. -, 112 S.Ct. 736 , 116 L.Ed.2d 848 , that the Confrontation Clause does not require the prosecution to produce the declarant or show that the declarant is unavailable to testify before the trial court admits testimony under the excited utterance exception to the rule against hearsay.

1993The United States Supreme Court held in White v. Illinois (1992), 502 U.S. -, 112 S.Ct. 736 , 116 L.Ed.2d 848 , that the Confrontation Clause does not require the prosecution to produce the declarant or show that the declarant is unavailable to testify before the trial court admits testimony under the excited utterance exception to the rule against hearsay.

2024“The excited-utterance exception to the hearsay rule provides that a statement is not excluded by the hearsay rule even though the declarant is available as a witness if the statement relates to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.” State v. Harr, 2004-Ohio-5771, ¶ 121 (2d Dist.), citing Evid.R. 803(2).

2024Therefore, statements made under these circumstances are not likely to be fabricated.” Id., citing 2 McCormick, Evidence, § 272 (5th Ed. 1999). {¶ 38} The Ohio Supreme Court has set forth a four-part test to determine whether or not a statement falls within the excited-utterance exception.

2025"The excited utterance exception to the hearsay rule exists because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed inherently reliable." State v. Ducey, 2004-Ohio-3833, ¶ 17 (10th Dist.); State v. Hopkins, 2018-Ohio-1864, ¶ 36 (2d Dist.); State v. Akers, 2021-Ohio-2562, ¶ 13 (5th Dist.) (noting that the rule protects statements or declarations that are spontaneous and unreflective); State v. Duncan, 53 Ohio St.2d 215 (1978).

2021Indeed, "[t]he Supreme Court of Ohio has emphasized '* * * an appellate court should allow a wide discretion in the trial court to determine whether in fact a declarant was at the time of an offered statement still under the influence of an exciting event.' " Manzell at ¶ 13, quoting State v. Duncan, 53 Ohio St.2d 215, 219 (1978). {¶ 39} The four prongs of Taylor having been met, we conclude that the trial court did not abuse its discretion in admitting into evidence the hearsay testimony of M.-W. under the excited utterance exception to the hearsay rule. {¶ 40} Next, we consider appellant's c

2023A 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, (b) the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time f

2023A 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, (b) the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time f

2025“The excited utterance exception to the hearsay rule exists because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed inherently reliable.” State v. Ducey, 2004-Ohio-3833, ¶ 17 (10th Dist.), citing State v. Taylor, 66 Ohio St.3d 295, 300 (1993).

2025"The excited utterance exception to the hearsay rule exists because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed inherently reliable." State v. Ducey, 2004-Ohio-3833, ¶ 17 (10th Dist.); State v. Hopkins, 2018-Ohio-1864, ¶ 36 (2d Dist.); State v. Akers, 2021-Ohio-2562, ¶ 13 (5th Dist.) (noting that the rule protects statements or declarations that are spontaneous and unreflective); State v. Duncan, 53 Ohio St.2d 215 (1978).

2011See Evid.R. 803(1), (2); Huertas, 51 Ohio St.3d at 31 (affirming finding that a statement made forty-five minutes after the event but while the declarant was still agitated and in serious pain and had not calmed down to be an excited utterance). ¶{306} As to the testimony of Ms. Sergeff concerning the fact that the victim’s fear was the result of appellant calling and watching the victim, a foundation was not sufficiently laid for either the present sense or the excited utterance exception at the initial hearing.

2003Evid.R. 803(2) defines the term “excited utterance” as “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.” The standard for the excited utterance exception is as follows: “To be admissible under Evid.R. 803(2) as an excited utterance, a statement must concern ‘some occurrence startling enough to produce a nervous excitement in the declarant,’ which occurrence the declarant had an opportunity to observe, and must be made ‘before there had been time for such nervous excitement to lose a domination

2021Cuyahoga Nos. 88320, 88321, 2007- Ohio-2226, ¶ 50, citing State v. Brown, 112 Ohio App.3d 583, 601 , 679 N.E.2d 361 (1996). {¶22} In State v. Taylor, 66 Ohio St.3d 295, 304 , 612 N.E.2d 316 (1993), the Supreme Court recognized children are likely to remain in a state of nervous excitement longer than an adult, and therefore held “admission of statements of a child regarding sexual assault may be proper under the excited utterance exception even when they are made after a substantial lapse of time.” The Taylor court also held there is no per se amount of time after which a statement can no long

2021Cuyahoga Nos. 88320, 88321, 2007- Ohio-2226, ¶ 50, citing State v. Brown, 112 Ohio App.3d 583, 601 , 679 N.E.2d 361 (1996). {¶22} In State v. Taylor, 66 Ohio St.3d 295, 304 , 612 N.E.2d 316 (1993), the Supreme Court recognized children are likely to remain in a state of nervous excitement longer than an adult, and therefore held “admission of statements of a child regarding sexual assault may be proper under the excited utterance exception even when they are made after a substantial lapse of time.” The Taylor court also held there is no per se amount of time after which a statement can no long

2014An “excited utterance” is defined as “[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.” Id. {¶ 7} In order for testimony to be allowed into evidence under the excited utterance exception, the following elements must be met “(1) there was an event startling enough to produce a nervous excitement in the declarant, (2) the statement must have been made while under the stress of excitement caused by the event, (3) the statement must relate to the startling event, and (4) the declarant must have ha

2014An “excited utterance” is defined as “[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.” Id. {¶ 7} In order for testimony to be allowed into evidence under the excited utterance exception, the following elements must be met “(1) there was an event startling enough to produce a nervous excitement in the declarant, (2) the statement must have been made while under the stress of excitement caused by the event, (3) the statement must relate to the startling event, and (4) the declarant must have ha

2016Cuyahoga No. 102119, 2016-Ohio-1466, ¶ 57 , citing State v. York, 115 Ohio App.3d 245, 249 , 685 N.E.2d 261 (4th Dist. 1996) (failure to raise and argue the excited utterance exception at trial waives the issue on appeal); State v. Allen, 8th Dist.

2016Cuyahoga No. 102119, 2016-Ohio-1466, ¶ 57 , citing State v. York, 115 Ohio App.3d 245, 249 , 685 N.E.2d 261 (4th Dist. 1996) (failure to raise and argue the excited utterance exception at trial waives the issue on appeal); State v. Allen, 8th Dist.

2023I am convinced that Monroe’s statements were nontestimonial and were admissible into evidence under the excited-utterance exception to the hearsay rule. {¶48} The Sixth Amendment to the United States Constitution states, “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, a

2023I am convinced that Monroe’s statements were nontestimonial and were admissible into evidence under the excited-utterance exception to the hearsay rule. {¶48} The Sixth Amendment to the United States Constitution states, “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, a

2019Op. at ¶ 84 (referring to "the liberal construction of the excited utterance exception adopted by the Supreme Court" and citing State v. Wagner, 30 Ohio App.3d 261, 263 (8th Dist. 1986). {¶ 117} I think it worth noting that the timeframe in Wagner of the events or condition generating the excitement in the excited utterance was substantially more defined than it is here; there, the small child complained of current pain and injury to his rectum as then confirmed on medical examination. 30 Ohio App.3d at 261 .

2019Op. at ¶ 84 (referring to "the liberal construction of the excited utterance exception adopted by the Supreme Court" and citing State v. Wagner, 30 Ohio App.3d 261, 263 (8th Dist. 1986). {¶ 117} I think it worth noting that the timeframe in Wagner of the events or condition generating the excitement in the excited utterance was substantially more defined than it is here; there, the small child complained of current pain and injury to his rectum as then confirmed on medical examination. 30 Ohio App.3d at 261 .

2022“A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343 , 2013-Ohio-966 , 986 N.E.2d 971, ¶ 34 . {¶ 14} Here, Brown relies on our decision in State v. Byrd, 160 Ohio App.3d 538 , 2005-Ohio-1902 , 828 N.E.2d 133 , to support his argument that the statements made by Reynolds to Officer Roesser were testimonial in nature and therefore did not fall under the excited utterance exception.

2022“A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343 , 2013-Ohio-966 , 986 N.E.2d 971, ¶ 34 . {¶ 14} Here, Brown relies on our decision in State v. Byrd, 160 Ohio App.3d 538 , 2005-Ohio-1902 , 828 N.E.2d 133 , to support his argument that the statements made by Reynolds to Officer Roesser were testimonial in nature and therefore did not fall under the excited utterance exception.

2015I could feel his fingers.’ ” Id. {¶29} Under Taylor, this testimony clearly falls under the excited utterance exception.

2013No. 12-09-01, 2010-Ohio-481, ¶ 27 , citing State v. Taylor, 66 Ohio St.3d 295, 300-01 (1993). -30- Case No. 8-12-04 Further, “[t]he controlling factor is whether the declaration was made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.” State v. Humphries, 79 Ohio App.3d 589, 598 (12th Dist. 1992). {¶60} We have liberally applied the excited utterance exception in cases involving child declarants who allege sexual abuse.

2006See State v. Moorman (1982), 7 Ohio App.3d 251 , 252 ; State v. Clifford, 9th Dist.

2003Cases that invoke the excited utterance exception typically involve automobile accidents, assaults, or similarly impactful events: State v. Moorman (1982), 7 Ohio App.3d 251 (witness to robbery); State v. Wallace (1988), 37 Ohio St.3d 87 (victim of child abuse and physical assault); State v. Cornell (1998), 129 Ohio App.3d 106 (severely beaten domestic violence victim).

2025(Citations omitted.) State v. Triplett, 2013-Ohio-3114, ¶ 27 (5th Dist.). “[E]ach case must be decided on its own circumstances, since it is patently futile to 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.” (Citations omitted.) Taylor, supra at 303 . {¶44} “The excited-utterance hearsay exception is treated differently when the declarant is an alleged sexually abused child; the test is extremely liberal.” In re D.M., 158 Ohio App.3d 780, ¶ 13 (8th Dist. 2004), citing State v. S

2010Tebelman, 2010-Ohio-481, at ¶27 , citing In re D.M., 158 Ohio App.3d 780 , 2004-Ohio-5858, ¶13 ; Taylor, 66 Ohio St.3d at 304 .

2025(Citations omitted.) State v. Triplett, 2013-Ohio-3114, ¶ 27 (5th Dist.). “[E]ach case must be decided on its own circumstances, since it is patently futile to 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.” (Citations omitted.) Taylor, supra at 303 . {¶44} “The excited-utterance hearsay exception is treated differently when the declarant is an alleged sexually abused child; the test is extremely liberal.” In re D.M., 158 Ohio App.3d 780, ¶ 13 (8th Dist. 2004), citing State v. S

2011State v. Shoop (1993), 87 Ohio App.3d 462, 472 , 622 N.E.2d 655 . {¶47} For an alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) the event must be startling enough to produce a nervous excitement in the declarant, (2) the statement must have been made while the declarant was still under the stress of excitement caused by the event, (3) the statement must relate to the startling event, and (4) the declarant must have personally observed the startling event.

2025For a statement made after an event to be admissible under this exception, “it must stand very close in time to the event.” Smith, 2019-Ohio-3257, at ¶ 20 (1st Dist.), citing State v. Stafford, 2004-Ohio-3893, ¶ 66 (1st Dist.). {¶24} The admissibility of these statements under the present sense impression exception meets the same fate as it does under the excited utterance exception.

2020Hamilton No. C-180499, 2019-Ohio-3257, at ¶ 18 , quoting Harris at ¶ 7 .

2024Compare Jones, 2012-Ohio-5677, at ¶ 130-131 ; Smith, 2002-Ohio-6659, at ¶ 43-44 .

2012Under Evidence Rule 803(2), an excited utterance is “[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.” “One of the requisites necessary to invoke the excited utterance exception is the declarant’s ‘opportunity to observe personally the matters asserted in his statement or declaration.’” State v. Smith, 97 Ohio St. 3d 367 , 2002-Ohio-6659, at ¶ 44 (quoting Potter v. Baker, 162 Ohio St. 488 , paragraph two of the syllabus (1955)).