[Cite as State v. Ollison,
2016-Ohio-8269.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-95
v. : (M.C. No. 15CRB-3117)
Yesenia Ollison, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 20, 2016
On brief: Richard C. Pfeiffer, Jr., City Attorney, and Orly
Ahroni, for appellee. Argued: Orly Ahroni.
On brief: Yeura R. Venters, Public Defender, and Timothy
E. Pierce, for appellant. Argued: Timothy E. Pierce.
APPEAL from the Franklin County Municipal Court
SADLER, J.
{¶ 1} Defendant-appellant, Yesenia Ollison, appeals from the February 8, 2016
judgment entry of the Franklin County Municipal Court sentencing her to two years of
probation after the jury's finding of guilt on charges of assault and disorderly conduct.
For the following reasons, we affirm the trial court judgment.
I. BACKGROUND
{¶ 2} On February 9, 2015, criminal complaints were filed alleging appellant
committed one count of assault, a violation of R.C. 2903.13(A), and one count of
disorderly conduct, a violation of Columbus City Code 2317.11(A)(1), arising out of a
December 26, 2014 parking lot incident in which appellant purportedly struck another
woman, Jermaria Clardy, with her fist. Appellant pled not guilty to the charges.
No. 16AP-95 2
{¶ 3} On February 1, 2016, appellant filed a motion in limine to preclude appellee
from introducing a cell phone recording of a security video of the incident. Appellant's
motion asserted that the video violated Evid.R. 901, 403, and "the Completeness
Doctrine." (Mot. in Lim. to Exclude Video at 1.) Appellant attached to the motion in
limine a copy of a magistrate's decision denying Clardy's civil stalking protection order
from May 2015. Prior to commencing the trial, the trial court heard arguments from the
parties regarding the motion in limine and the admissibility of the cell phone recording of
the security video and overruled the motion while noting additional arguments would be
entertained by the court at the time of a proffer of the recording. The case proceeded to a
jury trial.
{¶ 4} The following facts are not in dispute. On December 26, 2014, at around
9:20 p.m., Clardy drove her car to a market with her daughter, niece, and nephew in the
backseat and her teenage brother, Markadom Banks, in the passenger seat. Clardy parked
her car, entered the market, and shopped for groceries while her brother and the children
remained in the car. As she returned from the market and attempted to reenter her car,
several females dragged her from her car and attacked her in the parking lot of the
market, resulting in injuries to Clardy's face and arms. Whether appellant was one of
those females who participated in the attack was the central issue in dispute at trial.
{¶ 5} According to Clardy, appellant attacked her as part of a group retaliating for
a fight that occurred the previous day between Clardy and a woman named Cynthia
Aponte. Clardy testified that she personally knows Aponte through Charles McGinnis, the
father of Clardy's daughter. She assumed Aponte and McGinnis were in a romantic
relationship and testified that Aponte would call her and that the calls evolved from
asking about Clardy's relationship with McGinnis to threatening Clardy and her child. In
the beginning of December 2014, Clardy pursued a protection order against Aponte but
testified that the protection order was not served on Aponte because of an inaccurate
address.
{¶ 6} On Christmas day 2014, Clardy and her daughter were at Clardy's father's
house. McGinnis stopped by alone to give gifts to their daughter, at which time Clardy
stepped outside to avoid trouble and have a cigarette. According to Clardy, Aponte
arrived in another car, the two women exchanged words, and Aponte exited her vehicle
No. 16AP-95 3
and initiated a physical fight with Clardy. A police officer saw the altercation and took a
report but did not make any arrests.
{¶ 7} Clardy testified that the next day, December 26, 2014, she went to her
mother's house after work to pick up her daughter, niece, and nephew. She noticed a
vehicle circling her mother's block but did not recognize the vehicle and thought the
driver was lost. Clardy then took her brother, Banks, and the three children to McGuffey
Market, which was located about 10 or 15 minutes away from her mother's house. Clardy
and her brother noticed a vehicle following her car from a distance. Once at the market,
Clardy went inside the store while her brother and the children stayed in the car. Clardy
made her purchases and then noticed a crowd by the door to the market, in the parking
lot, and by the vehicles. Clardy walked to her vehicle but before she could open her door,
appellant ran up and attacked Clardy, striking her, and the two began fighting. Clardy
was then dragged to the middle of the parking lot, where several more people assaulted
her. Clardy testified that she was beaten, kicked, and hit in the head with an object and
that she could hear her daughter's screams during the attack. Clardy's brother was
eventually able to grab her and escort her to her vehicle. Clardy called the police and
returned to her father's house, "hysterical" and bleeding. (Tr. Vol. I at 172.)
{¶ 8} Police arrived and Clardy told police that Aponte and some of Aponte's
relatives, including "Jessie," assaulted her. (Tr. Vol. I at 173.) At that time, Clardy did not
know the actual names of the attackers; rather, she recognized several faces, including
appellant, whom she knew at that time by the name of Jessie Aponte, and another one of
their relatives, whom she later found out was named Michella Akram. After the attack,
she received phone calls from Aponte whereby Aponte laughed and told her she got what
she deserved and that "it's not over." (Tr. Vol. I at 173.) When Clardy started naming
Aponte and Jessie's names, they hung up the phone.
{¶ 9} The following day, December 27, 2014, Clardy and her father returned to
the market and asked to see video footage of the attack. The store would not provide a
copy of the surveillance footage to Clardy but allowed her to record the footage with her
cell phone as the footage played on a television in the market. Clardy then went to FedEx
and had the recording from her cell phone put on a disk. She presented the disk
containing the recording of the market surveillance footage to the prosecutor's office the
No. 16AP-95 4
following Monday morning. Clardy testified that she reviewed the contents of the disk,
that it fairly and accurately depicts her being assaulted at the market on December 26,
2014, and confirmed that she was present on the scene at the time of the incident depicted
in the video. Appellant objected to use and admission of the video into evidence in the
trial, arguing that the video violated Evid.R. 901(B)(1), the Completeness Doctrine, and
Evid.R. 403. The trial court overruled appellant's objection, finding the video admissible.
Appellee played the video for the jury, and Clardy testified that she had no control over
skips that occurred in the video footage. Clardy identified her vehicle, herself, her
brother, appellant, Aponte, Akram, and McGinnis in the video. Clardy testified that
appellant was the person in the video wearing jeans and a grey "hoodie" sweatshirt with
short or shoulder length hair. (Tr. Vol. I at 202.) Clardy testified that at the 37-second
mark of the video, Clardy was on the ground with appellant at the top of her torso and
Aponte near her lower body, and at the 1 minute, 3-second mark, Clardy is "getting
dragged." (Tr. Vol. I at 204.) Clardy additionally identified appellant at the 2-minute, 2-
second mark walking toward Clardy as Clardy returned to her car.
{¶ 10} Clardy took the video to the prosecutor's office the following Monday
morning, December 29, 2014, and made a report. At that time, Clardy knew Aponte's
name and thought appellant was named Jessie Aponte. According to Clardy, she was
familiar with appellant's face before the attack because Clardy had viewed pictures of
appellant with Aponte on Aponte's Facebook page with appellant's nickname tagged to
the picture. The prosecutor's office could not find the name Jessie Aponte in a database
or through a special unit and gave Clardy 30 days to locate the accurate name in order to
process the charges against her. Clardy found out appellant's real name through mutual
friends and social media. She saw a picture online with appellant's real name, and she
was sure the person in the picture was the same person who attacked her. In the
courtroom, Clardy identified appellant as the person who attacked her, testified that
"[t]here is no doubt in my mind" that appellant is the first person who attacked her, and
specified appellant as the main individual who attacked her. (Tr. Vol. I at 169.)
{¶ 11} On cross-examination, Clardy testified that she has not had other problems
with people following her, threatening her, or attempting to fight her. Appellee objected
to the relevance of the questioning, and appellant indicated her intent to introduce
No. 16AP-95 5
evidence that there might be other people Clardy has grudges with and written statements
where Clardy accused other people of following her and threatening her in the past.
Appellee responded by noting that appellant had not provided the document, a 2011
protection order, during discovery by arguing that the document constituted extrinsic
evidence to attack character, and with no other ties between the previous event years
earlier and the current attack, the information was prejudicial and confusing to the issue.
The trial court sustained appellee's objection and disallowed further questioning.
{¶ 12} Banks testified that he witnessed appellant attack his sister, Clardy, on
December 26, 2014 outside the market. He was in Clardy's car with his nieces and
nephew when a crowd of people started gathering around the store. According to Banks,
as Clardy was about to enter her car, appellant ran up to her swinging and hit her. Clardy
then was dragged to the middle of the parking lot. Banks got out of the passenger side
door of the car, but two adult men approached and told him "[i]t's a one-on-one fight,"
and one man patted his side in such a way that Banks believed he had a weapon. (Tr. Vol.
II at 278.) Banks then saw Aponte and Akram jump on Clardy; Banks testified he knew
both Aponte and Akram prior to the fight. When the men were gone, Banks tried to stop
the fight and pulled on his sister to free her from appellant, who had Clardy by the hair
and was punching her face. He was "face to face" with appellant, about one foot away
from her, and got a "pretty good look" at appellant. (Tr. Vol. II at 282, 307.) At the time
of the incident, Banks knew appellant by the name of Jessie. Banks identified appellant in
the courtroom as the person who hit his sister and agreed that he was certain that
appellant was the person who attacked his sister.
{¶ 13} Over appellant's renewed objection, appellee again played the video and
Banks confirmed that the video is a true and accurate depiction of the attack that
happened to his sister on December 26, 2014. Banks identified his sister, appellant,
Aponte, Akram, and himself in the video. He described appellant as wearing a grey or
white jacket and testified that appellant was the person pinning down his sister and
punching her. According to Banks, after the fight was over and he was attempting to get
Clardy in the car, appellant continued to try to hit her. During this time, Banks was one or
two-feet away from appellant.
No. 16AP-95 6
{¶ 14} On cross-examination, Banks testified that he did not know Aponte had a
sister and agreed that he looked at Aponte's Facebook page with Clardy before going to
the prosecutor's office with her. He agreed that he never made a statement to police.
{¶ 15} Ryan Craig, an officer with the Columbus Division of Police, testified to
responding to a call about an assault on December 26, 2014 and interviewing Clardy and
her brother. According to Craig, Clardy told him she knew two of her attackers, Cynthia
Aponte and a person with the "street name" Jessie Aponte and did not know the names of
her other attackers at that time. (Tr. Vol. II at 339.) She described the car the attackers
left in as a white Honda CRV and gave him two license plate numbers. The license plate
numbers "were run through LEADS without a match." (Tr. Vol. II at 311.) Craig ran a
third license plate number given by Clardy to prosecutors through LEADS and received a
match with a white Honda CRV. On cross-examination, Craig testified that to his
knowledge, neither a live or photo lineup was conducted in this case. He and other
officers did not go to the market to investigate or retrieve the surveillance video. As to his
interview with Clardy, Craig testified that she "gave very vague physical descriptions of
three of the five, but two she knew by name." (Tr. Vol. II at 333.) The license plate that
garnered a LEADS match indicated that a leasing company owned the vehicle.
{¶ 16} Thomas Watkins, a detective with the Columbus Division of Police, testified
to investigating the December 26, 2014 incident at the market. Watkins spoke to
appellant by phone in January 2015, and appellant told him that she knew Clardy through
Facebook and that she was not involved in the incident. At some point, Watkins reviewed
a video of the incident but did not remember how he was provided the video. As part of
his investigation, Watkins did not prepare any live or photo lineups.
{¶ 17} Appellee submitted 13 photographs as exhibits, which were admitted
without objection, and the DVD, which was admitted over objection. Appellee then rested
its case-in-chief. Appellant moved for a judgment of acquittal under Crim.R. 29, which
the court overruled.
{¶ 18} The defense then called two alibi witnesses, Mary Butcher and India Taylor,
to testify. According to Butcher, a childhood friend of appellant who has known her for
over 25 years and sees her regularly, appellant's full name is Yesenia Jessie Aponte, and
Ollison is appellant's married name. Cynthia Aponte is appellant's niece and had lived
No. 16AP-95 7
with appellant either in 2013 or 2014 and moved out due to having issues with her
boyfriend, McGinnis. Cynthia Aponte has one sister named Jessica Aponte. Butcher
testified that on December 26, 2014, she went to appellant's house for dinner and to hang
out, arriving between 4:00 and 4:30 p.m. and staying until 11:00 p.m. Neither appellant
nor Butcher left appellant's home at any point during that span. Also present in the home
were appellant's children and appellant's boyfriend, Jawan, and Taylor, among some
other people Butcher did not know.
{¶ 19} According to Taylor, who is also appellant's childhood friend, on
December 26, 2014, Taylor went to appellant's house at about 5:00 p.m. to hang out with
appellant and Butcher and left appellant's house at about 2:00 a.m. In addition to
appellant and Butcher, appellant's boyfriend and a couple of other people were at
appellant's home that evening. Taylor and appellant did not leave appellant's house the
entire evening. On cross-examination, Taylor testified that since childhood, she had
known appellant by the name of Jessie.
{¶ 20} Appellant then testified in her own defense. Appellant stated her legal
name on her birth certificate is Yesenia Jessie Aponte, and that she goes by the name of
Jessie. She kept the last name Ollison, her former husband's last name, to have the same
last name as her children. Regarding her niece, Cynthia Aponte, appellant testified that
she "pretty much raised her" because her sister was not around and that Cynthia had lived
with her for almost one year in 2013 until her problems with her boyfriend, McGinnis, led
to appellant not allowing Cynthia in her home anymore. (Tr. Vol. II at 395.) Cynthia did
not live with appellant on the day of the alleged assault. Appellant testified that she lives
on the east side and is familiar with McGuffey Market and that her sister, Cynthia's mom,
lives near the market.
{¶ 21} According to appellant, she was at her own home on the evening of the
incident hanging out with her close friends, children, and boyfriend, and she did not
leave. Her friends came over around 4:00 or 5:00 p.m., and the last friend present,
Taylor, did not leave until 1:00 or 2:00 a.m. She knew of Clardy through Cynthia but had
never met her or talked to her.
{¶ 22} On cross-examination, appellant testified that Cynthia did not talk to her
about the fight she had with Clardy on Christmas day or what happened at McGuffey
No. 16AP-95 8
Market. Appellant confirmed that at the time of the incident, she had a Facebook page
that stated her name as Jessie Aponte and that Yesenia Ollison is her government name
that "wouldn't be anywhere except for [her] ID or a bill collector." (Tr. Vol. II at 409.)
Appellant agreed that appellee's exhibits 16 and 17 were fair and accurate copies of her
Facebook profile page, and those exhibits were admitted without objection.
{¶ 23} Appellant rested her case. The jury found appellant guilty of both the
assault charge and the disorderly conduct charge, and on appellee's request, the trial court
proceeded directly to sentencing. Reflecting its sentencing decision in court, in an entry
dated February 8, 2016, the trial court stated:
Defendant was found guilty by the jury of Assault and
Disorderly Conduct. Defendant was sentenced to 180 days in
jail, credit for 2, 28 days forthwith, 150 days suspended.
Defendant is place on probation for a period of 2 years with
the following conditions: Stay away from Jermaria Clardy and
Markadom Banks, no same or similar, no further acts of
violence, submit to alcohol/drug screens, do not report to
probation under the influence of alcohol or drugs of abuse,
and assessment/counseling as deemed appropriate by
probation.
{¶ 24} In a subsequent entry dated February 12, 2016, the trial court "affirm[ed]
the sentence." (Feb. 12, 2016 Entry at 1.) Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 25} Appellant submits four assignments of error for our review:
[1.] Appellant's rights against double jeopardy and to due
process of law under the Fifth and Fourteenth Amendments of
the United States Constitution and Article I, Sections 1, 10 and
16 of the Ohio Constitution were violated when the jury
returned a verdict convicting her of both assault, a violation of
R.C. 2903.13(A), a misdemeanor of the first degree, as well as
the lesser-included offense of disorderly conduct, a violation
of Columbus City Code Section 2317.11(A)(1), a misdemeanor
of the fourth degree.
[2.] The lower court erred by admitting into evidence State's
Exhibit 14 (the surveillance video recording) in violation of
Evid. R. 901, 1002, 1003, and 403(A). This resulted in a
violation of Appellant's right to a fair trial under the Due
Process Clauses of the Fourteenth Amendment to the United
No. 16AP-95 9
States Constitution and Article I, Sections 1 and 16 of the Ohio
Constitution.
[3.] Appellant's right to a fair trial under the Due Process
Clauses of the Fourteenth Amendment of the United States
Constitution and Article I, Sections 1 and 16 of the Ohio
Constitution were violated when prosecution witnesses
Jermaria Clardy and Markadom Banks offered lay opinion
testimony that Appellant was depicted in State's Exhibit 14
(the surveillance video recording) which invaded the province
of the jury.
[4.] The trial court erred when it precluded appellant from
impeaching prosecution witness Jermaria Clardy via Evid. R.
613 and Evid. R. 616. This denied Appellant her right to a fair
trial under the Due Process Clauses of the Fourteenth
Amendment of the United States Constitution and Article I,
Sections 1 and 16 of the Ohio Constitution.
III. DISCUSSION
A. First Assignment of Error
{¶ 26} In her first assignment of error, appellant contends that her rights against
double jeopardy and to due process of law were violated "when the jury convicted her of
assault and disorderly conduct, the latter being a lesser-included offense of the former."
(Appellant's Brief at 1.) For the following reasons, we overrule appellant's first
assignment of error.
{¶ 27} We note that appellant did not ask for jury instructions or otherwise raise
these issues throughout trial or at sentencing. Matters not objected to at the trial court
level are reviewed under the plain error standard. Crim.R. 52(B). "In order to have plain
error under Crim.R. 52(B), there must be an error, the error must be an 'obvious' defect in
the trial proceedings, and the error must have affected 'substantial rights,' meaning that
the error must have affected the outcome of the trial." State v. Ryan, 10th Dist. No.
08AP-481, 2009-Ohio-3235, ¶ 18, discretionary appeal not allowed,
123 Ohio St.3d 1496,
2009-Ohio-6015, quoting State v. Barnes,
94 Ohio St.3d 21, 27 (2002). "Plain error is to
be used 'with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.' "
Barnes at ¶ 18, quoting State v. Long,
53 Ohio St.2d 91
(1978), paragraph three of the syllabus. A violation of double jeopardy constitutes plain
No. 16AP-95 10
error. State v. Dunham, 4th Dist. No. 04CA2941,
2005-Ohio-3642, ¶ 55. See also State v.
Underwood,
124 Ohio St.3d 365,
2010-Ohio-1, ¶ 31.
{¶ 28} The Double Jeopardy Clause of the United States Constitution, applied to
the states through the Fourteenth Amendment, and additionally guaranteed by Article I,
Section 10 of the Ohio Constitution, provides a defendant three protections: it protects
against a second prosecution for the same offense after acquittal, it protects against a
second prosecution for the same offense after conviction, and it protects against multiple
punishments for the same offense. Ryan at ¶ 19, citing State v. Brown, 119 Ohio St.3d
447,
2008-Ohio-4569, ¶ 10, certiorari denied,
129 S.Ct. 1356 (2009), citing United States
v. Halper,
490 U.S. 435, 440 (1989); Ohio v. Johnson,
467 U.S. 493, 498 (1984).
{¶ 29} "[W]hen multiple punishments are imposed in the same proceeding, the
Double Jeopardy Clause does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended." State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, ¶ 16. Thus, "[w]hile the Double Jeopardy Clause may protect a
defendant against cumulative punishments for convictions on the same offense, the
Clause does not prohibit the State from prosecuting respondent for such multiple offenses
in a single prosecution."
Johnson at 500. "In the case of multiple punishments, a
defendant is protected only from multiple punishments that were not intended by the
legislature." State v. Whitfield,
124 Ohio St.3d 319,
2010-Ohio-2, ¶ 8;
Johnson at 499.
{¶ 30} Appellant's argument is predicated on her disorderly conduct conviction per
Columbus City Code 2317.11(A)(1), comprising a lesser-included offense of R.C.
2903.13(A) assault. Consistent with our determination in State v. Keith, 10th Dist. No.
08AP-28, 2008-Ohio-6122, ¶ 27-34, and considering State v. Evans,
122 Ohio St.3d 381,
2009-Ohio-2974, paragraph two of the syllabus, we agree. Assault carries a greater
penalty than disorderly conduct. Assault requires that the offender causes or attempts to
cause the victim physical harm, an element not required by disorderly conduct, and
assault cannot be committed without also committing disorderly conduct "[b]ecause a
person will necessarily cause inconvenience, annoyance or alarm to another by causing or
attempting to cause them physical harm, and because recklessly is a lesser mental state
than knowingly." Keith at ¶ 32; see Evans at paragraph two of the syllabus.
No. 16AP-95 11
{¶ 31} The parties essentially debate the point in time a double jeopardy violation
occurs with regard to convictions for both a greater and lesser-included offense in the
same proceeding. Both parties agree that a jury found appellant guilty of both offenses
and that the trial court sentenced appellant only on the assault charge. (Appellant's Brief
at 28; Appellee's Brief at 16.) However, appellant argues that her double jeopardy rights
were violated at the point the jury returned guilty verdicts for both the greater and lesser-included offense regardless of imposition of sentence. Appellee argues that for purposes
of double jeopardy, a conviction occurs at sentencing, and in this case, the trial court only
sentenced appellant and therefore convicted her of the assault charge.1 For the following
reasons, we disagree with appellant's argument.
{¶ 32} The double jeopardy protection prohibiting successive prosecution and
cumulative punishment applies in the context of greater and lesser-included offenses.
Brown v. Ohio, 432 U.S. 161 (1977). However, the presence of lesser and greater offenses,
alone, does not control whether a double jeopardy violation for multiple punishments
within a single proceeding occurs. As an example, although gross sexual imposition is a
lesser-included offense of rape, a defendant may be properly charged with and convicted
of both offenses in one proceeding in a scenario that includes distinct acts and/or victims.
See, e.g., State v. Reid, 8th Dist. No. 83206,
2004-Ohio-2018, ¶ 75, discretionary appeal
not allowed,
103 Ohio St.3d 1428,
2004-Ohio-4524 (concluding that lesser-included
offense of gross sexual imposition did not merge with rape where one was not incidental
to the other).
{¶ 33} Rather, in Ohio, the General Assembly codified double jeopardy protections
in the context of multiple punishments for the same offense in R.C. 2941.25. State v. Ruff,
143 Ohio St.3d 114,
2015-Ohio-995, ¶ 10-12;
Whitfield at ¶ 7 ("[W]e recognize that [R.C.
2941.25] incorporates the constitutional protections against double jeopardy. These
protections generally forbid successive prosecutions and multiple punishments for the
same offense."); Brown at ¶ 12 ("[T]he two-step test set forth in R.C. 2941.25, Ohio's
1 Although we agree with the assessment of both parties that the trial court sentenced appellant on that
single offense, this issue is not dispositive to resolving the assignment of error. Appellant does not assert
that the trial court imposed separate sentences in violation of her double jeopardy and due process rights,
challenge merger pursuant to R.C. 2941.25, or otherwise call attention to errors in the trial court's
sentencing or entry. As a result, we proceed to resolve the assignment of error based on appellant's
argument.
No. 16AP-95 12
multiple-count statute, answered both the constitutional and state statutory inquiries
regarding the General Assembly's intent to permit cumulative punishments for the same
conduct."). Cases involving a lesser-included offense are subject to R.C. 2941.25 merger
analysis at sentencing. See, e.g., State v. Day, 2d Dist. No. 2008 CA 70, 2009-Ohio-7046
(holding, in a case where the defendant was found guilty of burglary and aggravated
burglary and given concurrent sentences on each, that "[s]ince a defendant cannot be
convicted of both the greater and lesser offense [pursuant to R.C. 2941.25], the
convictions are merged, and [the] conviction for burglary will be vacated"); Reid at ¶ 75
(discussing that, as greater and lesser-included offenses, "under R.C. 2941.25, a defendant
may generally not be convicted of and sentenced for both gross sexual imposition and
rape when they arise out of the same conduct").
{¶ 34} Furthermore, in Whitfield and restated by Rogers and State v. Williams, __
Ohio St.3d __, 2016-Ohio-7658, ¶ 17, the Supreme Court of Ohio specifically held that in
the context of imposition of multiple punishments for the same offense, "a 'conviction'
consists of a guilty verdict and the imposition of a sentence or penalty." (Emphasis sic.)
Whitfield at ¶ 12; Rogers at ¶ 18. See also State v. Crable, 7th Dist. No. 04 BE 17, 2004-
Ohio-6812, ¶ 7 ("[A] defendant cannot be found guilty and punished on both the greater
offense and the lesser-included offense."); Rutledge v. United States, 517 U.S. 292 (1996)
(holding concurrent sentences imposed for continuing criminal enterprise and the lesser-included offense of conspiracy to be cumulative punishment in a single trial in violation of
double jeopardy).
{¶ 35} The cases cited by appellant in support of her proposition do not persuade
us that a different rule should apply here. The majority of the cited cases do not identify
the guilty verdict itself as the dispositive point for the double jeopardy violation in regard
to multiple punishments for the same offense in a single proceeding and lack persuasive
authority considering recent Ohio case law specifically addressing the meaning of
"conviction" within the context of double jeopardy protections against multiple
punishments in single proceedings. Therefore, considering all the above, we disagree that
the jury's finding of guilt on both assault and disorderly conduct alone amounted to
multiple punishments in violation of appellant's double jeopardy rights.
{¶ 36} Accordingly, we overrule appellant's first assignment of error.
No. 16AP-95 13
B. Third Assignment of Error
{¶ 37} For ease of argument, we will next consider appellant's third assignment of
error in which appellant contends that the trial court erred when it permitted prosecution
witnesses Clardy and Banks to offer their opinion that appellant is depicted in the
surveillance footage. For the following reasons, we disagree.
{¶ 38} Evid.R. 701 governs the admissibility of opinion testimony by lay witnesses.
It states "[i]f the witness is not testifying as an expert, the witness' testimony in the form
of opinions or inferences is limited to those opinions or inferences which are (1) rationally
based on the perception of the witness and (2) helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue."
{¶ 39} "Evid.R. 701 grants the trial court wide latitude in allowing or controlling
lay witness opinion testimony." State v. Kehoe, 133 Ohio App.3d 591, 603 (12th
Dist.1999). Generally, an appellate court reviews the decisions of the trial court
concerning lay witness testimony for an abuse of discretion.
Id. However, appellant did
not object to Clardy's and Bank's testimony on this basis at trial, and, therefore, plain
error review applies. " 'An alleged error is plain error only if the error is "obvious," State
v. Barnes (2002),
94 Ohio St.3d 21, 27,
2002-Ohio-68,
759 N.E.2d 1240, and "but for the
error, the outcome of the trial clearly would have been otherwise." State v. Long (1978),
53 Ohio St.2d 91,
7 O.O.3d 178,
372 N.E.2d 804, paragraph two of the syllabus.' " State v.
Arnold,
147 Ohio St.3d 138,
2016-Ohio-1595, ¶ 65, quoting State v. Perez,
124 Ohio St.3d
122,
2009-Ohio-6179, ¶ 181. State v. Obermiller,
147 Ohio St.3d 175,
2016-Ohio-1594,
¶ 62, quoting Crim.R. 52(B) (" 'Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.' "). Plain error
should be noticed only " 'with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.' " Id., quoting
Long at 97.
{¶ 40} Appellant argues that prosecution witnesses Clardy and Banks
impermissibly "offered lay opinion testimony" that appellant was depicted in the
surveillance footage due to the lack of evidence that they were familiar with appellant
prior to the altercation. (Appellant's Brief at 1.)
{¶ 41} However, regardless of Clardy's and Banks' familiarity with appellant prior
to the altercation, each demonstrated that their opinion was rationally based on their
No. 16AP-95 14
personal knowledge of the identity of appellant in the video. They testified that they were
present at the altercation, had close contact with the assailant, and recognized appellant's
face and distinctive clothing from the altercation. Their opinion was helpful to the jury to
understand their testimony regarding identification of appellant as the person who hit
Clardy. The circumstances of this case distinguish it from the cases cited by appellant in
which the witnesses lacked sufficient contact with the defendant to aid the jury with their
opinion, and we find no error in the trial court's decision to allow Clardy and Banks to
testify regarding their opinion that appellant was the person who attacked Clardy in the
video. Furthermore, because Clardy and Banks identified appellant based on their own
recollection of the incident and identified appellant as Clardy's attacker in open court,
appellant has not proven that but for the alleged error, the outcome of the trial clearly
would have been otherwise.
{¶ 42} Appellant additionally mentions that such testimony has limited probative
value and was cumulative and confusing, implicating Evid.R. 403. Evid.R. 403 states:
Exclusion of relevant evidence on grounds of
prejudice, confusion, or undue delay
(A) Exclusion mandatory. Although relevant, evidence is
not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of
the issues, or of misleading the jury.
(B) Exclusion discretionary. Although relevant, evidence
may be excluded if its probative value is substantially
outweighed by considerations of undue delay, or needless
presentation of cumulative evidence.
(Emphasis sic.)
{¶ 43} Clardy's and Banks' testimony that appellant was depicted in the video
assisted the jury in identification of the perpetrator—the solitary issue at trial. We see no
indication that their testimony confused the issue at trial and, therefore, find no grounds
for mandatory exclusion under Evid.R. 403(A). We likewise disagree that such testimony
constituted a needless presentation of cumulative evidence, as the testimony aided the
jury's understanding of Clardy's and Banks' recognition of appellant's face. As such, we
do not believe the trial court erred in declining to exclude the testimony under Evid.R.
No. 16AP-95 15
403(B). Considering the facts of this case, the trial court did not err or abuse its discretion
in not excluding Clardy's and Banks' testimony identifying appellant in the video.
{¶ 44} Accordingly, appellant's third assignment of error is overruled.
C. Second Assignment of Error
{¶ 45} In her second assignment of error, appellant contends that the trial court
erred when it allowed appellee's exhibit 14, the cell phone recording of the surveillance
footage, to be admitted into evidence, in violation of Evid.R. 901, 1002, 1003, and 403(A).
For the following reasons, we disagree.
{¶ 46} The admission of video evidence rests within the sound discretion of the
trial court. State v. Farrah, 10th Dist. No. 01AP-968 (Apr. 18, 2002). An abuse of
discretion connotes more than an error of law or judgment and implies that the court's
attitude is clearly unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983).
{¶ 47} Appellant primarily argues that the video was not properly authenticated at
trial in violation of Evid.R. 901. Authentication or identification is a condition precedent
to admissibility of evidence. Evid.R. 901(A). This requirement is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.
Evid.R. 901(A). The rule provides a non-exhaustive list of illustrations as examples of
authentication conforming with the rule, including, pursuant to Evid.R. 901(B)(1),
testimony of a witness with knowledge that a matter is what it is claimed and, pursuant to
Evid.R. 901(B)(4), distinctive characteristics taken in conjunction with the circumstances.
The threshold for authentication is low: " 'The proponent need not offer conclusive
evidence as a foundation [but] must merely offer sufficient evidence to allow the question
as to authenticity or genuineness to reach the jury.' " State v. Callender, 10th Dist. No.
15AP-15, 2015-Ohio-4255, ¶ 32, quoting State v. Caldwell, 9th Dist. No. 14720 (Dec. 4,
1991). Hirsi v. Davis Creek Auto Sales, 10th Dist. No. 15AP-415,
2016-Ohio-7569, ¶ 50.
{¶ 48} "Photographic evidence, including videotapes, can be admitted under a
'pictorial testimony' theory or a 'silent witness' theory." State v. Hoffmeyer, 9th Dist. No.
27065, 2014-Ohio-3578, ¶ 19, quoting Midland Steel Prods. Co. v. U.A.W. Local 486,
61
Ohio St.3d 121, 129-30 (1991). "Under the pictorial testimony theory, evidence is
admissible 'when a sponsoring witness can testify that it is a fair and accurate
No. 16AP-95 16
representation of the subject matter, based on that witness' personal observation.' "
Id.,
quoting Midland Steel Prods. at 129. Thus, the evidence " 'is merely illustrative of a
witness' testimony.' " State v. Pickens,
141 Ohio St.3d 462,
2014-Ohio-5445, ¶ 150,
quoting Midland Steel Prods. at 129. " 'In authenticating evidence through this method,
there is no need to call the witness who took the photographs as long as a witness with
knowledge can testify that the photograph is a fair and accurate depiction.' " State v.
Scott, 12th Dist. No. CA2012-06-052,
2013-Ohio-2866, ¶ 36, quoting State v. Freeze, 12th
Dist. No. CA2011-11-209,
2012-Ohio-5840, ¶ 66.
{¶ 49} Appellee primarily argues that the incompleteness and poor quality of the
video affects its authenticity and trustworthiness. However, Clardy testified that she
personally recorded the surveillance video with her cell phone, had a video made of it and
presented it personally to the prosecutor's office, and Clardy and Banks each testified that
they were present at the altercation and that the video fairly and accurately depicts the
incident. As such, we agree with appellee that Clardy and Banks serve as pictorial
witnesses and that their testimony was sufficient to authenticate the video pursuant to
Evid.R. 901(B)(1). Under these circumstances, the trial court did not abuse its discretion
in allowing the video to be admitted into evidence.
{¶ 50} Appellant next argues that admission of the recording violated Evid.R. 1002
and 1003. Evid.R. 1002 provides, "[t]o prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except as
otherwise provided in these rules or by statute enacted by the General Assembly not in
conflict with a rule of the Supreme Court of Ohio." One such exception is provided in
Evid.R. 1003, which states "[a] duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original." Under
Evid.R. 1001(4), a duplicate includes "a counterpart produced … by means of
photography, including enlargements and miniatures, or by mechanical or electronic rerecording … or by other equivalent techniques which accurately reproduce the
original."
{¶ 51} The decision to admit duplicates is within the sound discretion of the trial
court. State v. Tibbetts, 92 Ohio St.3d 146, 160 (2001). The party seeking to exclude a
No. 16AP-95 17
duplicate has the burden of demonstrating that the duplicate should be excluded.
Id. A
trial court does not abuse its discretion in admitting a duplicate where the party seeking to
exclude the duplicate merely speculates regarding its authenticity. State v. Jones, 8th
Dist. No. 102318,
2015-Ohio-4694, ¶ 33; State v. Garcia, 3d Dist. No. 5-01-12 (Sept. 10,
2001).
{¶ 52} Several appellate courts have found video recordings of surveillance footage
to be admissible duplicates pursuant to Evid.R. 1003. See, e.g., State v. Taylor, 8th Dist.
No. 98107, 2012-Ohio-5421, ¶ 39 (cell phone video recording of portions of surveillance
video and excerpted still-frame photographs admissible duplicates under Evid.R. 1003
where appellant did not raise genuine questions as to their trustworthiness); Garcia
(video duplicate of store surveillance video admissible under Evid.R. 1003 where
defendant merely alleged, without strong support, that the duplicate may have omitted
important parts and the maker of the duplicate testified that the duplicate was a true and
accurate copy of the original); Jones at ¶ 36 (portions of video tape of a store surveillance
footage an admissible duplicate where maker of duplicate testified that the footage was
not altered or tampered with such that it should be deemed unreliable and that the
duplicate accurately reflected the original).
{¶ 53} Here, appellant concedes that the video admitted into evidence was a
duplicate. Appellant argues the test for the admission of duplicates under Evid.R. 1003
was not met because the authenticity of the video was "hotly disputed" primarily due to its
"lack of completeness and gaps" and because to do so would be unfair. (Appellant's Brief
at 38, 39.)
{¶ 54} Contrary to appellant's position, our review of the record shows that
appellant did not meet her burden in raising a genuine question as to the authenticity of
the original or demonstrating that in the circumstances it would be unfair to admit the
duplicate in lieu of the original. Appellant did not discuss Evid.R. 1003 at all in her
motion in limine and gives minimal argument specifically to this point at trial beyond
asking why efforts were not made to preserve the original and questioning the reliability
generally. Although appellant alleged the video was incomplete, she did so through
challenges to other rules of evidence without discussing how these points impact
authenticity. Furthermore, appellee presented testimony supporting the authenticity of
No. 16AP-95 18
the original. Clardy testified that she personally viewed the original surveillance footage,
recorded the entire footage of the incident with her cell phone, had no control over the
skips that occurred in the video, that the video played for the jury was the same video she
provided to prosecutors, and that the duplicate of the original was an accurate depiction
of the altercation. Overall, after reviewing the record and the video, appellant did not
meet her burden in proving the trial court acted unreasonably, arbitrarily, or
unconscionably in this case. Therefore, we find that the trial court did not abuse its
discretion by admitting the duplicate recording of the original surveillance footage into
evidence.
{¶ 55} Lastly, appellant argues that the video should have not been admitted
pursuant to Evid.R. 403(A). As provided earlier, Evid.R. 403(A) covers the mandatory
exclusion of relevant evidence and states "[a]lthough relevant, evidence is not admissible
if its probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury."
{¶ 56} Appellant argues that the video is "indistinct making it impossible for the
jury to objectively determine whether Banks' and Clardy's narratives were accurate" and
"inaudible." (Appellant's Brief at 36.) We disagree that the video is so indistinct that it
would not aid the jury in objectively determining the accuracy of Clardy's and Banks'
testimony. This is a case hinging on identification of the perpetrator where the alleged
victim and eyewitness testified to remembering the face of the assailant from the assault.
The video, although dark, still provides objective information regarding the proximity of
Clardy and Banks to the participants, how long of a look Clardy and Banks may have been
able take of the participants, the distinctive clothing of each participant, and the order of
events of the incident. As such, the video holds high probative value in assisting the jury
in assessing the ability of Clardy and Banks to see and accurately remember the face of the
primary attacker. In such circumstances, we do not find that due to the quality of the
video and the lack of audibility, the probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the jury. State v.
Simmons, 2d Dist. No. 24009, 2011-Ohio-2068, ¶ 15 (finding that to the extent a
surveillance video with partially blocked footage corroborates the eyewitness testimony
and refutes the defendant's own testimony as to what occurred, it has significant
No. 16AP-95 19
probative value that is not substantially outweighed by the danger of unfair prejudice
under Evid.R. 403(A)). Therefore, the trial court did not abuse its discretion in not
excluding the evidence under Evid.R. 403(A).
{¶ 57} Accordingly, for all the above stated reasons, appellant's second assignment
of error is overruled.
D. Fourth Assignment of Error
{¶ 58} In her fourth assignment of error, appellant contends that her right to a fair
trial was undermined when the trial court refused to allow the defense to avail itself of
Evid.R. 613 and 616 to impeach the testimony of Clardy during cross-examination. We
disagree.
{¶ 59} "Cross-examination shall be permitted on all relevant matters and matters
affecting credibility." Evid.R. 611(B). "The limitation of … cross-examination lies
within the sound discretion of the trial court, viewed in relation to the particular facts of
the case." State v. Acre, 6 Ohio St.3d 140, 145 (1983).
{¶ 60} Several evidence rules, as well as common-law principles, cover
impeachment. See notes to Evid.R. 608. Under the general rule of impeachment, the
credibility of a witness may be attacked by any party. Evid.R. 607(A). However, "[a]
questioner must have a reasonable basis for asking any question pertaining to
impeachment that implies the existence of an impeaching fact." Evid.R. 607(B).
Pertinent to appellant's assignment of error, under Evid.R. 613, "[i]n examining a witness
concerning a prior statement made by the witness, whether written or not, the statement
need not be shown nor its contents disclosed to the witness at that time, but on request
the same shall be shown or disclosed to opposing counsel." Evid.R. 613(A). Furthermore,
extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of
the following apply:
(1) If the statement is offered solely for the purpose of
impeaching the witness, the witness is afforded a prior
opportunity to explain or deny the statement and the opposite
party is afforded an opportunity to interrogate the witness on
the statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the
following:
No. 16AP-95 20
(a) A fact that is of consequence to the determination of the
action other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under
Evid.R. 608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under the
common law of impeachment if not in conflict with the Rules
of Evidence.
Evid.R. 613(B). As we state in State v. Ferguson, 10th Dist. No. 12AP-1003, 2013-Ohio-
4798, ¶ 15:
Evid.R. 613(B), thus, allows introduction of extrinsic evidence
of a prior statement only after a proper foundation has been
laid through direct or cross-examination in which: " ' "(1) the
witness … is presented with the former statement; (2) the
witness is asked whether he made the statement; (3) the
witness is given an opportunity to admit, deny or explain the
statement; and (4) the opposing party is given an opportunity
to interrogate the witness on the inconsistent statement." ' "
State v. Kulasa, 10th Dist. No. 11AP-826, 2012-Ohio-6021,
¶ 12, quoting State v. Mack, 73 Ohio St.3d 502, 514-15,
1995
Ohio 273,
653 N.E.2d 329 (1995), quoting State v. Theuring,
46 Ohio App.3d 152, 155,
546 N.E.2d 436 (1st Dist.1988). If a
witness denies making a prior inconsistent statement, a
proper foundation has been laid, and if, in addition, the prior
inconsistent statement does not relate to a collateral matter,
extrinsic evidence is admissible. Kulasa at ¶ 19. If a witness
admits having made the contradictory statements, however,
then extrinsic evidence of the prior inconsistent statement is
not admissible. In re M.E.G., 10th Dist. No. 06AP-1256,
2007-Ohio-4308; State v. Hill, 2d Dist. No. 20028, 2004-
Ohio-2048, ¶ 40.
{¶ 61} Furthermore, pursuant to Evid.R. 616(C), "[s]pecific contradiction":
Facts contradicting a witness's testimony may be shown for
the purpose of impeaching the witness's testimony. If offered
for the sole purpose of impeaching a witness's testimony,
extrinsic evidence of contradiction is inadmissible unless the
evidence is one of the following:
(1) Permitted by Evid.R. 608(A), 609, 613, 616(A), 616(B), or
706;
No. 16AP-95 21
(2) Permitted by the common law of impeachment and not in
conflict with the Rules of Evidence.
{¶ 62} The issue in this case arose during appellant's cross-examination of Clardy.
The transcript shows that after appellant asked Clardy about the car that kept riding past
her mother's house, that she later believed to have followed her to the market, defense
counsel and Clardy held the following exchange:
Q. Have you ever had any other problems with other people
following you?
A. No.
Q. Have you ever had any problems with people other than
Cynthia threatening you?
A. No.
Q. Have you ever had problems with anybody other than
Cynthia attempting to fight you?
A. No.
(Tr. Vol. I at 233.)
{¶ 63} At that point, appellee objected on the basis of relevance. Counsel for
appellant explained that it intended to question Clardy with two documents, which were
apparently papers filed in the court of common pleas in 2011 accusing people of following
and threatening her. Defense counsel stated two purposes for doing so: to present
evidence that other people may have attacked Clardy and to impeach Clardy's testimony
as inconsistent with or in contradiction to prior statements. After a wide-ranging
discussion, the trial court ultimately sustained that objection and disallowed further
questioning on the subject, pursuant to Evid.R. 404(B), and because appellant had not
presented alternative methods for the court to allow the questioning. The 2011
documents were not proffered into evidence.
{¶ 64} As a preliminary issue, based on this record, we cannot fully review the
assignment of error to the extent it challenges appellant's inability to use extrinsic
evidence under Evid.R. 613(B) and 616(C). The testimony here was cut-off at a point
prior to the defense's hypothetical use of extrinsic evidence, which was not actually
No. 16AP-95 22
presented to Clardy. In other words, the error, if any, comes from the court's decision to
disallow questioning regarding her statements in the prior documents without the use of
extrinsic evidence.
{¶ 65} The trial court's exact reason for disallowing any further questioning
regarding the 2011 documents is unclear. It sustained the objection regarding relevance,
while also seemingly basing a decision on impermissible other acts evidence under
Evid.R. 404(B).
{¶ 66} While we do not see from the record that the evidence was being improperly
advanced to prove Clardy acted in conformity with her character, in violation of Evid.R.
404(B), we do find another ground raised by appellee, the lack of inconsistent statements,
persuasive. From this record, we simply cannot confirm whether Clardy's statements
were inconsistent or contradicting. Moreover, even if the trial court erred in not
permitting appellant to impeach Clardy with the 2011 statements, the error was harmless.
The evidence showed that appellant had a close relationship with Aponte, having shared
in raising her, and lived near the market and that appellant's niece and Clardy had fought
the prior day. Clardy's brother's testimony, in which he stated he personally viewed
appellant during the fight from a close proximity and identified appellant as the person
who assaulted Clardy, supplemented her testimony to the same. Therefore, considering
all the above, appellant's argument lacks merit.
{¶ 67} Accordingly, appellant's fourth assignment of error is overruled.
IV. CONCLUSION
{¶ 68} Having overruled appellant's four assignments of error, we affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
BROWN, J., concurs.
HORTON, J., concurring in judgment only.
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