State v. Faulkner ( 2011 )

[Cite as State v. Faulkner, 2011-Ohio-4573.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2011-CA-00019
TERRA K. FAULKNER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court
Case No. 2011-CRB-01134
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 6, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JENNIFER ARNOLD 0070848 JACOB T. WILL 0086558
Alliance Prosecutor’s Office 116 Cleveland Ave., N.W., Ste. 808
470 E. Market St. Canton, Ohio 44702
Alliance, Ohio 44601
[Cite as State v. Faulkner, 2011-Ohio-4573.]
Delaney, J.
{¶1} Defendant-Appellant, Terra Faulkner, appeals from the judgment of the
Alliance Municipal Court, convicting her of three counts of criminal mischief,
misdemeanors of the third degree, in violation of R.C. 2909.07. The State of Ohio is
Plaintiff-Appellee.
{¶2} On August 21, 2010, at approximately 2:30 a.m., Dawn Shutler received a
phone call from a person whom she recognized as being Appellant. Shutler stated that
she had spoken to Appellant many times, that Appellant has a distinctive voice, and that
she was positive that the person on the phone was Appellant.
{¶3} Shutler stated that she and Appellant did not get along and that they had
not been friends for a long time. During the phone call at 2:30 a.m. on the twenty-first,
Shutler stated that Appellant told her that she had had Shutler’s brother’s car “detailed”
for him that night. At that time, Appellant lived next door to Shutler’s brother on Summit
Street in Alliance. Shutler asked Appellant to clarify, and Appellant stated “I detailed his
and the neighbors.” Appellant then told Shutler to go over and take a look at the cars.
Appellant then called Shutler back and said something about a “pool party.”
{¶4} Shutler proceeded to her brother’s (Robby), house, where she heard
water pouring out of something. She went into Robby’s neighbors’ yard, Brad and
Shellie Sampson, and started sliding because there was water gushing everywhere. It
was later determined that someone had cut holes in their above-ground pool, causing
water to drain out of the pool.
Stark County, Case No. 2011-CA-00019 3
{¶5} Shutler immediately called the police. When the police arrived, Shutler’s
phone rang again and it was Appellant. Shutler handed the phone to the police, who
spoke with Appellant briefly.
{¶6} When the officer shined his flashlight on Robby’s van, they saw that
someone had scratched the side of the car in multiple places. Shutler then woke her
brother up to inform him of the damage. Robby stated that the damage had not been
there the previous day.
{¶7} Shellie Sampson was also informed of the vandalism and she stated that
prior to August 21, her pool was full and had no cuts in it. Her husband’s black Chevy
Avalanche had also been scratched up that evening, and she stated that the scratches
were not there the previous day. Sampson took photographs of the damage to the
vehicles and the pool, which were introduced at trial.
{¶8} Earlier, on August 3, 2010, Sampson was sitting on Robby Shutler’s front
porch, when Appellant began calling them repeatedly. At one point, they put the phone
on speaker and recorded a conversation between themselves and Appellant. Sampson
stated that she was able to procure another cell phone, a BlackBerry, which was used
to record the call and that she turned the recording over to the Alliance police
department. In the recording, Appellant was cussing at them and also made a
statement about Sampson’s “nice truck”.
{¶9} Sampson listened to the recording again at trial and stated that it was the
same as it had been the day that it was made. She also stated that when she retrieved
the phone from the owner, it had been locked in a safe.
Stark County, Case No. 2011-CA-00019 4
{¶10} Sampson also informed the police that after the incident, Appellant would
make statements about how it was hot outside, and how it would be a nice day to go
swimming and laugh about the damage to the pool.
{¶11} Officer Aaron Perkins of the Alliance Police Department testified that he
responded to Dawn Shutler’s call at approximately 2:30 a.m. on August 21, 2010, and
that she showed him the damage to her brother’s car and to the pool. While Perkins
was speaking with Shutler, he stated that Shutler’s phone rang and that it was
Appellant. He took the phone from Shutler and spoke to Appellant, and stated that he
recognized her voice because she has a distinctive voice.
{¶12} Perkins told Appellant that he was outside her house and that he wanted
to speak with her and she hung up the phone. He stated that he could see people
moving around inside Appellant’s residence. He approached the residence and
Appellant came out and he spoke further to her.
{¶13} A complaint was filed against Appellant on September 3, 2010, for three
counts of criminal mischief, misdemeanors of the third degree, in violation of R.C.
2909.07.
{¶14} Appellant exercised her right to a jury trial on December 30, 2010, and the
jury found her guilty of each count. The trial court sentenced Appellant to thirty days in
jail on each count, and suspended fifteen days on each count. The court also ordered
Appellant to pay $250.00 restitution to Robby Shutler for the deductible on his car,
$250.00 to Brad Sampson for the deductible on his truck, and $499.00 to Shellie
Sampson for the damage to the pool.
Stark County, Case No. 2011-CA-00019 5
{¶15} It is from this judgment that Appellant now appeals and raises two
Assignments of Error:
{¶16} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶17} “II. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO
PRESENT THE PHYSICAL EVIDENCE OF A RECORDING OF A PHONE CALL AS
THE STATE FAILED TO ESTABLISH CHAIN OF CUSTODY.”
I.
{¶18} In her first assignment of error, Appellant claims that the evidence was
insufficient to support a finding of guilty and that her convictions were against the
manifest weight of the evidence. We disagree.
{¶19} When reviewing a claim of sufficiency of the evidence, an appellate court’s
role is to examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt beyond a
reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492. Contrary
to a manifest weight argument, a sufficiency analysis raises a question of law and does
not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App. 3d 172,
175. The relevant inquiry is whether, after viewing the evidence in a light most favorable
to the prosecution, “any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.” State v. Thompkins, 78 Ohio St. 3d 380,
386, 1997-Ohio-52, 678 N.E.2d 541.
{¶20} Conversely, when analyzing a manifest weight claim, this Court sits as a
“thirteenth juror” and in reviewing the entire record, “weighs the evidence and all
Stark County, Case No. 2011-CA-00019 6
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.” State v.
Thompkins (1997), 78 Ohio St. 3d 380, 387, 678 N.E.2d 541, 548, quoting State v.
Martin (1983), 20 Ohio App. 3d 172, 175.
{¶21} In order to convict Appellant of criminal mischief, the State had to prove
that Appellant, without privilege to do so, knowingly moved, defaced, damaged,
destroyed, or otherwise improperly tampered with the property of another. R.C.
2909.07(A)(1). Specifically, the State had to prove that Appellant defaced, damaged, or
tampered with Robby Shutler’s car, with Brad Sampson’s truck, and with Brad and
Shellie Sampson’s pool.
{¶22} When viewing the evidence in the light most favorable to the prosecution,
we find that sufficient evidence existed to convict Appellant of these three counts of
criminal mischief.
{¶23} Dawn Shutler testified that when she received the call at 2:30 a.m. on
August 21, 2010, she immediately recognized the caller as being Appellant because
she had spoken to her many times in the past. Appellant told Shutler that she had just
“detailed” Shutler’s brother’s car and the neighbors’ car. She then called Shutler back
and mentioned a pool party.
{¶24} When Shutler arrived at her brother’s residence, the driver’s side of his car
had been scratched up and there was water in the Sampson’s backyard from where
someone had cut gashes into the pool. Sampson’s car had also been keyed, which
they realized the next morning.
Stark County, Case No. 2011-CA-00019 7
{¶25} When the police arrived at Robby Shutler’s house that night, Appellant
again called Dawn Shutler and Shutler handed the phone to Officer Perkins, who
recognized Appellant’s voice. He then went to Appellant’s residence and briefly spoke
to her, confirming that the person on the phone was indeed Appellant.
{¶26} After the incident, Appellant would sit on her porch and make comments
towards Shellie Sampson about how it was hot outside and that it would be a nice day
to swim in a pool.
{¶27} Based on the evidence presented, we find sufficient evidence to convict
Appellant of the crimes with which she was charged. Moreover, Appellant has
presented no persuasive argument that the jury lost its way in convicting Appellant.
Accordingly, Appellant’s convictions were not against the manifest weight of the
evidence.
{¶28} Appellant’s first assignment of error is overruled.
II.
{¶29} In her second assignment of error, Appellant argues that the trial court
erred by allowing the State to present evidence of the phone recording of August 3,
2010, because the State failed to establish chain of custody.
{¶30} Trial courts are granted broad discretion with respect to the admission or
exclusion of evidence at trial. State v. Sage (1987), 31 Ohio St. 3d 173, 180, 510 N.E.2d
343, 348. Thus, an appellate court will not reverse a trial court’s ruling absent an abuse
of discretion. State v. Myers, 97 Ohio St. 3d 335, 348, 2002-Ohio-6658, ¶75. “The term
‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the
court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore
Stark County, Case No. 2011-CA-00019 8
(1983), 5 Ohio St. 3d 217, 219. Absent an abuse of discretion resulting in material
prejudice to the defendant, a reviewing court should be reluctant to interfere with a trial
court’s decision in this regard. State v. Hymore (1967), 9 Ohio St. 2d 122, 224 N.E.2d
126.
{¶31} The State bears the burden of establishing a proper chain of custody;
however, that duty is not absolute. State v. Moore (1973), 47 Ohio App. 2d 181, 353
N.E.2d 866. The State need only establish that it is reasonably certain that substitution,
alteration or tampering did not occur. Id. Moreover, breaks in the chain of custody go
not to the admissibility of evidence, but to the weight afforded it. Columbus v. Marks
(1963), 118 Ohio App. 359, 194 N.E.2d 791; State v. Fleming (May 10, 1983), 10th Dist.
No. 82AP-813, 1983 WL 3503.
{¶32} The phone recording was created on August 3, 2010. Robby Shutler and
Shellie Sampson were present, along with others, when the recording was made. The
call was recorded onto a pink BlackBerry with a cracked screen. Sampson testified that
she retrieved the cell phone from the owner several weeks after the conversation
occurred, that the owner had retrieved it from a safe, and that Sampson then took it to
the police department to be used as evidence.
{¶33} The recording was played at trial and Sampson testified that it was the
exact same conversation that took place on August 3, 2010. She also identified her
own voice and Appellant’s and Robby’s in the recording. She stated that she was
present for the whole conversation when the recording was made and stated that it had
not been altered prior to trial.
Stark County, Case No. 2011-CA-00019 9
{¶34} Accordingly, any question as to chain of custody and whether the
recording was accurate was a matter for the jury to determine and weigh in light of all
the evidence.
{¶35} The trial court did not err in allowing the admission of the recording into
evidence.
{¶36} Appellant’s second assignment of error is overruled.
{¶37} The judgment of the Alliance Municipal Court is affirmed.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
[Cite as State v. Faulkner, 2011-Ohio-4573.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TERRA FAULKNER :
:
Defendant-Appellant : Case No. 2011-CA-00019
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Alliance Municipal Court is affirmed. Costs assessed to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE