[Cite as State v. Heineman,
2021-Ohio-643.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-20-10
PLAINTIFF-APPELLEE,
v.
RICHARD HEINEMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion Municipal Court
Trial Court No. CRB 1903058
Judgment Affirmed
Date of Decision: March 8, 2021
APPEARANCES:
Carlos M. Crawford for Appellant
Michael D. Swartz for Appellee
Case No. 9-20-10
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Richard Heineman (“Heineman”) brings this
appeal from the judgment of the Marion Municipal Court. On appeal, Heineman
claims that the trial court erred by admitting certain items of evidence, that the
judgment is against the manifest weight of the evidence, and that he was denied the
effective assistance of counsel. For the reasons set forth below, the judgment is
affirmed.
{¶2} On November 6, 2019, Deputy Kevin Davidson (“Davidson”) issued a
citation to Heineman for violating the terms of a certain civil protection order
(“CPO”) in violation of R.C. 2919.27. Doc. 1. A jury trial was held in the Marion
Municipal Court on March 4, 2020. During the trial, the following testimony was
presented.
{¶3} The victim testified that on November 20, 2018, she obtained the CPO
against Heineman which prohibited Heineman from having any contact with her.
Tr. 10-11. The victim testified that she observed Heineman throwing yard debris
into her yard. Tr. 12. The victim then went outside and threw the sticks into
Heineman’s yard. Tr. 12. Heineman then came out, yelled at her, and threw the
debris back into her yard, striking her with some of it. Tr. 12. The victim then
called the police and Davidson came out and spoke with her and Heineman
separately. Tr. 13-14. On cross-examination, the victim admitted that the yard
debris that Heineman put in her yard was from her trees. Tr. 16.
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{¶4} The victim’s son, Ryan Whittaker (“Whittaker”) testified that on the
day in question, he was at the victim’s home. Tr. 19. He was looking out the kitchen
window and saw Heineman pick up sticks and throw them towards the victim while
yelling at her. Tr. 19. Whittaker started to go outside when the victim came in
saying she was calling the police. Tr. 22.
{¶5} Davidson testified that he was dispatched to the victim’s home where
he spoke with her and Whittaker. Tr. 26. Davidson then went and spoke with
Heineman who indicated he was tired of her sticks in his yard and admitted that he
had originally put them back in the victim’s yard. Tr. 26. Davidson identified
State’s Ex. 2 as a copy of the body camera footage from the investigation. Tr. 27.
After speaking with Heineman, Davidson arrested him for violating the CPO. Tr.
28. Before speaking to anyone, Davidson had confirmed that the CPO was still
valid. Tr. 30. Davidson testified that Heineman had admitted to saying “I’m tired
of this” to the victim. Tr. 31-32. The State then rested its case.
{¶6} Heineman testified that he saw that the victim had thrown branches into
his yard that he had returned to her yard as they had come from her tree. Tr. 39-40.
Heineman testified that he said “I’m tired of this shit” to himself because every time
her yard debris gets piled in his yard, he has to pay to have it hauled away. Tr. 39-
40. Heineman denied that he ever interacted with the victim. Tr. 41-42. According
to Heineman, he knew the victim had security cameras, so he would not have done
anything because she was recording it. Tr. 41.
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{¶7} Following Heineman’s testimony, the defense rested. As rebuttal, the
State replayed the body cam footage. Tr. 63-64. The jury returned a verdict of
guilty. Doc. 23. The trial court accepted the verdict of guilty and sentenced
Heineman to 180 days in jail with 175 days suspended and a $400 fine with $200
suspended.1 Doc. 20. Heineman appealed from this judgment. Doc. 30. On appeal,
Heineman raises the following assignments of error.
First Assignment of Error
The court erred in permitting the State to re-play vest camera
footage in rebuttal at [Heineman’s] trial, which resulted in an
unfair trial.
Second Assignment of Error
The court erred in admitting improperly authenticated body
camera video footage
Third Assignment of Error
Defense counsel was ineffective for failing to object to the
admission of vest cam footage in the absence of proper
authentication
Fourth Assignment of Error
[Heineman’s] conviction was against the manifest weight of the
evidence.
In the interest of clarity, the assignments of error will be addressed out of order.
1
This Court notes that the trial court also ordered the defendant to “be evaluated for hearing assisting
devices and acquire the recommended option.” How this was related to the offense charged does not
appear in the record. However, the issue was not raised on appeal, so we need not address it.
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Case No. 9-20-10
Body Camera Footage
{¶8} In the second assignment of error, Heineman claims the trial court erred
by admitting the body camera footage as it had not been properly authenticated. The
admission of evidence is usually within the sound discretion of the trial court and
will only be reversed upon a showing that the trial court abused that discretion.
Peters v. Ohio State Lottery, Comm., 63 Ohio St.3d 296, 299,
587 N.E.2d 290
(1992). “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” Evid.R. 901(A). One way to
authenticate evidence is to have a witness with knowledge of the item testify to what
it is. Evid.R. 901(B)(1). A review of the record shows that Davidson identified the
footage as coming from his body camera before the video was played. Tr. 27.
Although the identification could have been clearer before the video was played,
Davidson was very clear as to the accuracy of the video after it was shown. After
the video was stopped at one minute seventeen seconds, which was all that was
shown to the jury, Davidson testified that the video was a true and accurate depiction
of what occurred. Tr. 30. Furthermore, Heineman makes no claim that the video
was not what it was purported to be or that it was not authentic, merely that it was
prejudicial. Based upon Davidson’s identification of the video as one with
knowledge of it, the requirements of authentication were met. The second
assignment of error is overruled.
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Case No. 9-20-10
Effectiveness of Counsel
{¶9} Heineman claims in the third assignment of error that his counsel was
ineffective for failing to object to the admission of the body camera footage due to
lack of proper authentication.
In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, … had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
71,
74 O.O.2d 156,
341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St.2d 391, 396–397,
2 O.O.3d 495, 498,
358 N.E.2d
623, 627, vacated on other grounds (1978),
438 U.S. 910,
98 S.Ct.
3135,
57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
St.2d 299,
31 O.O.2d 567,
209 N.E.2d 164; State v. Jackson, 64
Ohio St.2d [107] at 110–111, 18 O.O.3d [348] at 351, 413 N.E.2d
[819] at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289,
1999-Ohio-102,
714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42,
2016-Ohio-3499,
66 N.E.3d 349, ¶
20. “To show prejudice, the defendant must show a reasonable probability that, but
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for counsel's errors, the result of the proceeding would have been different.” State
v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815,
848 N.E.2d 810, ¶ 95. “The
prejudice inquiry, thus, focuses not only on outcome determination, but also on
‘whether the result of the proceeding was fundamentally unfair or unreliable.’”
State v. Montgomery,
148 Ohio St.3d 347,
2016-Ohio-5487,
71 N.E.3d 180 quoting
Lockhart v. Fretwell,
506 U.S. 364, 369,
113 S.Ct. 838,
122 L.Ed.2d 180 (1993).
{¶10} Heineman claims that his counsel was ineffective for failing to object
to the admission of the video because it was not properly authenticated. This Court
addressed this issue above and found that the video was properly authenticated.
Thus, counsel was not ineffective for failing to object to the admission of the video
evidence due to failure to authenticate it. The third assignment of error is overruled.
Rebuttal Evidence
{¶11} Heinemen claims in the first assignment of error that the trial court
erred by allowing the video to be replayed during the State’s rebuttal. As discussed
above, the admission of evidence is left to the sound discretion of the trial court.
The trial court’s decision will not be reversed merely because this Court may have
reached a different conclusion. Davis v. Butler Cty. Bd. of Revision, 12th Dist. No.
CA2012-05-114, 2013-Ohio-3310, ¶ 27.
{¶12} Generally out of court statements offered for the truth of the matter
asserted are defined as hearsay. Evid.R. 801(C). However, a prior statement by a
witness is not hearsay if it meets certain criteria.
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Case No. 9-20-10
The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is …
(b) consistent with declarant’s testimony and is offered to rebut
an express or implied charge against declarant of recent
fabrication or improper influence or motive ….
Evid.R. 801(D)(1).
{¶13} In this case, the victim and Whittaker both testified at trial and were
subject to cross-examination. The victim testified that Heineman called her a name.
Heineman testified that he did not call her a name. The State wanted to use the body
camera footage to show that the victim’s and Whittaker’s trial statements were
consistent with their prior statements. Davidson testified that the testimony given
at the trial was consistent with what he was told during the investigation. Tr. 64.
Reviewing the testimony of Heineman, he did not claim there was recent
fabrication, but rather that the victim and Whittaker had been lying from the
beginning about his actions. However, the trial court found that he had challenged
the credibility of the witnesses and allowed the State to use the prior consistent
statements to rehabilitate the witnesses. The decision as to whether to allow the
evidence to be presented is left to the discretion of the trial court. Even though it
could arguably have reached the opposite conclusion than the one it did, we do not
find that the trial court abused its discretion in doing so, because it was not
unreasonable, arbitrary, or unconscionable. The first assignment of error is
overruled.
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Case No. 9-20-10
Manifest Weight of the Evidence
{¶14} When reviewing a judgment to determine if it is against
the manifest weight of the evidence, an appellate court “review[s] the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Mendoza, 137 Ohio
App.3d 336,
738 N.E.2d 822 (3d Dist. 2000). See, also, State v. Thompkins,
78
Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). A new trial should be granted only in
the exceptional case in which the evidence weighs heavily against
conviction.
Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts
as a “thirteenth juror,” due deference to the findings made by the fact-finder must
still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22,
2013-Ohio-650, ¶
29.
{¶15} Reviewing the evidence in this case, the testimony was that Heineman
was under a no contact order with the victim. He was prohibited from even talking
to her at all. Although Heineman denies that he said anything to the victim, he stated
that he said he was tired of things. The victim testified that he called her a name.
Whittaker testified that he saw Heineman yelling at the victim. The jury heard the
witnesses and was able to weigh the credibility of each of them. Viewing the
evidence as a whole, this Court does not find that the evidence weighs heavily
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against conviction or that the jury clearly lost its way creating a manifest miscarriage
of justice. The fourth assignment of error is overruled.
{¶16} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Marion Municipal Court is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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