State v. Jones , 2011 Ohio 3275 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-3275.]
.
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24077
Plaintiff-Appellee :
: Trial Court Case No. 09-CR-3072
v. :
: (Criminal Appeal from
KENNETH D. JONES : (Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of June, 2011.
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MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorneys for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. #0012093, 4428 North Dixie Drive, Dayton, Ohio 45414
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Kenneth D. Jones appeals from his conviction and sentence on charges of
aggravated robbery, felonious assault, having a weapon while under disability, and an
accompanying firearm specification.
{¶ 2} Jones advances three assignments of error on appeal. First, he contends the trial
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court erred in permitting a prosecution witness to testify about certain cell phone records
without having sufficient personal knowledge of the subject matter. Second, he alleges that his
trial counsel provided constitutionally ineffective assistance by failing to object and to seek a
mistrial when a prosecution witness suggested that he had a prior record. Third, he claims his
aggravated robbery conviction is against the manifest weight of the evidence.
{¶ 3} The present appeal stems from Jones’s role in a shooting and robbery that
occurred on September 15, 2009. The State’s primary witness at trial was Jason Kinney, the
victim. Kinney testified that he and Jones were friends who participated in the same billiards
league. He also testified that he occasionally purchased marijuana from Jones. According to
Kinney, he spoke to Jones on the telephone on September 15, 2009, and arranged to meet at
Cox Arboretum to examine some marijuana. The meeting took place, and Kinney agreed to
purchase the marijuana later that day. Sometime that evening, Jones called Kinney and
instructed him to go to the Wood Hill apartments in West Carrollton to complete the
transaction. Because he was unfamiliar with the area, Kinney called Jones back and got
directions as he approached the apartments.
{¶ 4} Kinney arrived sometime after 11:00 p.m. and pulled into the parking lot. Jones
and an unidentified male exited an apartment building and approached Kinney’s truck. When
Kinney expressed uneasiness about a third party’s presence, the unidentified person walked
away. Jones then entered the passenger side of Kinney’s truck holding a duffel bag. Jones
proceeded to pull out a handgun while saying, “Here’s how it’s going to go down.” As soon as
he saw the gun, Kinney tried to flee. Before he could escape, however, Jones shot him in the
back. Kinney fell to the pavement. Jones then crawled across the seat and exited the
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driver-side door. At the same time, Kinney took at least $1,000 from his pockets, exclaimed
“all right, all right, all right,” and threw the money toward Jones, who was standing over him
with the gun pointed at him. Jones took the money and ran. After he disappeared, Kinney got
back in his truck, drove less than a mile to a gas station, and called the police with his cell
phone. When the police arrived, Kinney identified Jones as the shooter.
{¶ 5} Another prosecution witness, Paula Papke, testified about cell phone records
showing with whom Jones had spoken on the day in question. Papke described herself as
security department manager and custodian of records for Cincinnati Bell. She proceeded to
discuss records that showed twenty-two text messages or calls between Jones and Kinney on
September 15, 2009. Two of those communications occurred at 11:18 p.m. and 11:34 p.m.,
and they used a West Carrollton cell phone tower located about two miles away from where
the robbery and shooting took place. Papke also testified about communications between
Jones’s cell phone and his girlfriend’s cell phone at times when he claimed to have been at her
home with her.
{¶ 6} A third witness, Jason Hendrix, testified that he resided at the Wood Hill
apartment complex. Around 11:30 or so, he heard a gunshot in the parking lot outside his
apartment. Hendrix testified that he looked out his window and saw only two people. One of
them sped away in a truck while the other fled on foot. The following day, Hendrix reviewed a
photo spread and identified Jones as the person he had seen running away.
{¶ 7} Detective Gene Jarman also testified at Jones’s trial. He told the jury about his
interview with Jones at the Montgomery County jail on September 21, 2009. According to
Jarman, Jones admitted having met Kinney on the afternoon of September 15, 2009, at Cox
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Arboretum to discuss a marijuana purchase. Jones insisted, however, that the drug deal never
took place because he was unable to get the marijuana. According to Jarman, Jones claimed to
have been at a bar throughout the evening. Jones admitted, however, that since the shooting
people had been making arrangements for him to leave Ohio.
{¶ 8} Jones presented one witness in his defense, Latasha Barber, his girlfriend.
Barber testified that she picked Jones up outside a downtown Dayton bar shortly after 10:30
p.m. on September 15, 2009, and took him to her home in Huber Heights. According to
Barber, she stopped at a gas station before arriving home a little after 11:00 p.m. Barber
testified that she and Jones went to bed and remained there until the following morning. In
rebuttal, detective Jarman identified phone records showing at least thirteen text messages or
calls involving Jones’s cell phone and Barber’s cell phone from 11:42 p.m. on September 15,
2009, until 1:13 a.m. on September 16, 2009.
{¶ 9} After hearing the evidence, the jury found Jones guilty of aggravated robbery,
felonious assault, and a firearm specification.1 The trial court separately found him guilty of
having a weapon while under disability. He received an aggregate sentence of fourteen years
in prison. This appeal followed.
{¶ 10} In his first assignment of error, Jones contends the trial court erred in allowing
Paula Papke to testify without having sufficient personal knowledge of Cincinnati Bell’s
phone records.
{¶ 11} As set forth above, Papke testified that cell phone records showed
1
Parenthetically, we note that the jury actually found Jones guilty on multiple aggravated robbery and felonious assault charges.
The trial court merged them as allied offenses of similar import, and that issue is not before us.
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communications between Jones’s phone and Kinney’s phone in the vicinity of the shooting
shortly before it occurred as well as communications between Jones’s phone and Barber’s
phone when he claimed to have been in bed with her. Although Papke identified herself as
custodian of records for Cincinnati Bell, Jones claims she did not create the records, did not
know how they were created, could not explain how reliable they were, was not an expert in
cell phone technology, could not say who placed the calls in question, and did not create the
mechanism that recorded the call information. As a result, he claims Papke lacked sufficient
personal knowledge to establish that the cell phone records fit within the business-records
hearsay exception under Evid.R. 803(6).
{¶ 12} Upon review, we find Jones’s argument to be without merit. Papke provided
sufficient testimony to establish that the cell phone records were business records under
Evid.R. 803(6). This Court has recognized that “[a] telephone record or other such document
can often fall within the business record exception[.]” State v. Hirtzinger (1997), 124 Ohio
App.3d 40, 49. “However, [Evid.R. 803(6)] has an authentication requirement which must be
met before the rule applies.” Id. It “requires that some person testify as to the regularity and
reliability of the business activity involved in the creation of the record.” Id. “‘The witness
providing the foundation need not have firsthand knowledge of the transaction.’” Id., quoting
State v. Vrona (1988), 47 Ohio App.3d 145, 148. “Nevertheless, ‘it must be demonstrated that
the witness is sufficiently familiar with the operation of the business and with the
circumstances of the record’s preparation, maintenance and retrieval, that he can reasonably
testify on the basis of this knowledge that the record is what it purports to be, and that it was
made in the ordinary course of business consistent with the elements of Evid.R. 803(6).’” Id.6
(Citation omitted).
{¶ 13} Here, we believe Papke had sufficient familiarity with Cincinnati Bell’s
business and with the preparation, maintenance, and retrieval of the records at issue. Papke
testified that she manages an office responsible for processing more than 300 subpoena
requests for phone records each month. She explained that the records are created when
Cincinnati Bell’s network of servers receives information from a cell phone tower that a call
“ping[s] off of.” According to Papke, a call typically pings off of the nearest tower unless it is
busy or obstructed. In that case, a call will ping off of the closest available tower. Papke
further testified that call records are stored on the network of servers at the company’s central
office. She retrieves this information by accessing a password-protected database that stores
the records on the servers. To do so, she needs either a customer’s account number or
telephone number.
{¶ 14} On cross examination, Papke admitted that she could not speak
“technically”about how call records are created. She acknowledged that she did not “program
the system.” Nor could she “put a percentage” on the reliability of the records. Although
Papke knew that a cell phone call pings off of the best available cell tower, which usually is
the closest one, she was unable to explain how that process worked. She also could not
explain the mechanics of how the data was transferred from the tower to the company’s
servers. In addition, Papke admitted her inability to say who placed the calls at issue.
{¶ 15} In our view, the foregoing issues went to the weight of Papke’s testimony, not
the admissibility of the records she discussed. She did not need to be a computer programmer
or a cell tower engineer to identify generally how the records at issue were prepared,
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maintained, and retrieved. As set forth above, she explained that the records were created
when information from a cell phone pinged off of a cell tower and was transmitted to
Cincinnati Bell’s network of servers. The records were maintained by being stored in a
database on the servers at the company’s central office. The records were retrieved by
accessing the password-protected database. Based on her “day-to-day job duties,” which
included pulling hundreds of records, Papke testified that she found them to be reliable.
Although Papke could not say who placed the calls at issue, other evidence in the record
linked the cell phone numbers to Jones, Kinney, and Barber. Because we believe Papke
sufficiently qualified the cell phone records as business records under Evid.R. 803(6), Jones’s
first assignment of error is overruled.
{¶ 16} In his second assignment of error, Jones claims his trial counsel provided
constitutionally ineffective assistance by failing to object and to seek a mistrial when
detective Gene Jarman suggested he had a prior record. This argument concerns Jarman’s two
references to an internet site known as “Justice Web.” The first reference occurred as Jarman
explained how he located Jones. He testified as follows:
{¶ 17} “I went into Justice Web, which is run by Montgomery County, for when
people are booked in for minor—for misdemeanors at the jail. May take their photos and take
their information, their address and things like that. And I did put in the search module,
Darnell Jones, and it came back with a Kenneth Darnell Jones.
{¶ 18} “* * *
{¶ 19} “Well, at that point I wasn’t really—I wanted to make sure that I was on the
right track. One of the options that you have in Justice Web is you can click on the addresses
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that people give whenever they’re booked into jail or they get a traffic citation. And when I
clicked on Kenneth Darnell Jones’ prior addresses, it showed 512 Ludwell or 520 Ludwell.”
(Transcript, Vol. III at 485).
{¶ 20} The second reference occurred later, on cross examination, when Jarman was
asked about prior addresses for Jones. He responded:
{¶ 21} “Some, yeah, there were some other previous addresses listed. There was one I
believe on West Second Street. And I can’t recall any others that were listed in Justice Web.”
(Id. at 524).
{¶ 22} On appeal, Jones contends Jarman’s references to Justice Web were
objectionable because they “announced to the jury that [he] was at least an arrestee, if not for
certain a convicted criminal.” Jones further asserts that he was prejudiced by his attorney’s
failure to object to Jarman’s references and to seek a mistrial. We disagree.
{¶ 23} To prevail on his ineffective assistance of counsel claim, Jones must show
deficient performance and resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674. To establish deficiency, he must show that counsel’s
representation fell below an objective standard of reasonableness. Id. To show prejudice, he
must demonstrate that counsel's deficiency impacted the judgment against him. State v.
Bradley (1989), 42 Ohio St.3d 136. Reversal is warranted if there is a reasonable probability
that, but for counsel’s deficient performance, the result of the proceeding would have been
different. Id.{¶ 24} Upon review, we conclude that Jones cannot prevail on his
ineffective-assistance claim. Jarman first testified that Justice Web displayed the addresses of
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people who had been booked into jail for misdemeanors or traffic citations. Even if this
statement was objectionable because it exposed Jones’s prior contact with law enforcement,
we find no reasonable probability that it contributed to his convictions. As set forth above, the
record contained unrefuted testimony that Jones periodically sold significant quantities of
marijuana to Kinney. In light of this testimony, the jury’s knowledge that Jones also may have
been arrested for a misdemeanor or traffic citation could not have done much to tarnish his
image. The second statement by Jarman is even less problematic. In that statement, which was
elicited by defense counsel on cross examination, Jarman made a passing reference to Justice
Web without repeating that it provided contact information for arrestees. We find no
reasonable probability that the outcome of Jones’s trial would have been different if the jury
had not heard either of the challenged statements. Accordingly, the second assignment of error
is overruled.
{¶ 25} In his final assignment of error, Jones contends his aggravated robbery
conviction is against the manifest weight of the evidence. In support, he asserts that there were
no witnesses to any robbery and that no one saw Kinney with $1,000 cash. Jones also
maintains that Kinney voluntarily gave him the money. Jones points out the absence of any
oral demand for the money, which Kinney admittedly “threw” at him. Absent such a demand,
Jones reasons that there could be no attempted or completed theft offense and, therefore, no
robbery.
{¶ 26} Upon review, we find Jones’s argument to be unpersuasive. When a conviction
is challenged on appeal as being against the weight of the evidence, an appellate court must
review the entire record, weigh the evidence and all reasonable inferences, consider witness
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credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact
“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. Thompkins (1997), 78 Ohio St.3d 380, 387.
A judgment should be reversed as being against the manifest weight of the evidence “only in
the exceptional case in which the evidence weighs heavily against the conviction.” State v.
Martin (1983), 20 Ohio App.3d 172, 175.
{¶ 27} With the foregoing standards in mind, we conclude that Jones’s conviction is
not against the weight of the evidence. Kinney testified that he was carrying at least $1,000
cash when Jones shot him. Eyewitness Jason Hendrix identified Jones as the person he saw
fleeing the scene of the shooting. The fact that Jones did not orally demand Kinney’s money
did not preclude an aggravated robbery conviction. As the State points out, Kinney plainly
knew what was happening when Jones pulled a handgun and announced, “Here’s how it’s
going to go down.” Only after being shot in the back did Kinney surrender his money to
Jones, who was standing over Kinney with a gun pointed at him. Under these circumstances,
the jury reasonably could have concluded that Kinney did not voluntarily give Jones
$1,000.The jury could then also reasonably have found Jones guilty of aggravated robbery.
The evidence does not weigh heavily against his conviction. The third assignment of error is
overruled.
{¶ 28} The judgment of the Montgomery County Common Pleas Court is affirmed.
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FAIN and FROELICH, JJ., concur.
Copies mailed to:
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Mathias H. Heck, Jr.
Kirsten A. Brandt
J. Allen Wilmes
Hon. Timothy J. O’Connell