State v. Tyler , 196 Ohio App. 3d 443 ( 2011 )

[Cite as State v. Tyler, 196 Ohio App. 3d 443, 2011-Ohio-3937.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
The State of Ohio, : Case No. 10CA3183
Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
Tyler, :
RELEASED 08/09/11
Appellant. :
_____________________________________________________________________
APPEARANCES:
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Richard W. Clagg,
Assistant Prosecuting Attorney, for appellee.
Benson & Schmidt, L.L.P., and Jonathan D. Schmidt, for appellant.
______________________________________________________________________
HARSHA, Presiding Judge.
{¶1} Jacob Tyler appeals his convictions for aggravated robbery and
aggravated burglary. Tyler presents various arguments concerning a recording of a
phone call made from the Ross County jail to the victim after his arrest. First, Tyler
argues that the state failed to authenticate the recording. Although the state’s effort at
authentication was minimal at best, we hold that no abuse of discretion occurred in its
admission. The victim testified that she received a call to her cell phone on a specific
date and identified the caller as Tyler. And a deputy at the jail testified that he used this
cell phone number to locate the recording of the phone conversation on the same date.
Ross App. No. 10CA3183 2
Second, Tyler argues that the court abused its discretion in admitting the recording into
evidence because it was hearsay. We disagree because the recording—composed of
Tyler’s statements and the victims’ responses or statements in which Tyler manifested
his belief—constituted an admission, i.e., it was not hearsay. Third, Tyler argues that
the court erred in allowing the jurors to listen to the recording twice during their
deliberations, which Tyler argues placed undue emphasis on this piece of evidence.
However, the trial court properly exercised its discretion in permitting the jurors to listen
to the recording during deliberations, especially in light of evidence on record
suggesting that the recording was difficult to understand when played during the trial.
{¶2} Finally, Tyler argues that both convictions were against the manifest
weight of the evidence. Because the state presented substantial evidence of Tyler’s
guilt through the testimony of the victim of the robbery, who identified Tyler, and Tyler’s
own inculpatory statements on the recorded telephone conversation, substantial
evidence supports his conviction.
I. Summary of the Case
{¶3} The state charged Tyler with one count of aggravated robbery and one
count of aggravated burglary, both with gun specifications. At trial, the state introduced
the following evidence.
{¶4} Nicole Graves testified that in the early morning hours of March 22, 2009,
she and her roommate Brook Michaels were applying makeup at a vanity in the
entrance room to the home, preparing to go out for the night. Two men carrying long
black guns and dressed in black came into the home through the unlocked but closed
Ross App. No. 10CA3183 3
entry door. Both men wore stockings on their faces; however, Graves immediately
recognized one of the men as Tyler.
{¶5} Graves explained that she had known Tyler for six years, that they had
been in a relationship, and that they were at one point engaged to be married. But
Graves testified that Tyler did not live with her at the address of the robbery and did not
have any clothing or other personal items there, and that she had not seen him for
about a month prior to the events of March 22.
{¶6} Graves stated that Tyler pointed the gun at both her and her roommate
and that it was either a shotgun or rifle. Initially, Graves believed that Tyler was joking.
When he grabbed her purse, she realized he was not. Graves attempted to stop him
from taking the purse; he responded by striking her in the jaw with what she believed
was the butt of the gun. During this scuffle, Tyler pushed her into a television, causing a
shoulder injury. At trial, the state introduced photographs depicting lacerations to
Graves’s chin and shoulder.
{¶7} The two men left, taking the purse with them. Because her cell phone was
in the purse, Graves and Brooks went to a neighbor’s residence and contacted the
police. The two women spoke with officers from the Chillicothe police department and
Graves gave police her written statement.
{¶8} It is unclear from the record, but it appears that several days later the
Ross County sheriff’s office recovered the purse and returned it to Graves. Some
testimony suggested that Tyler turned the purse in himself on the same day of the
incident. Graves testified that the purse was intact, although burnt and covered in oil.
Ross App. No. 10CA3183 4
She said that everything it contained, including her children’s birth certificates, social
security cards, and cash, was missing.
{¶9} After the state indicted and arrested Tyler, he allegedly placed a call from
the Ross County jail to Graves’s cell phone on April 26, 2009, and engaged her in a
telephone conversation, which the jail recorded. Graves explained that at first she did
not realize it was Tyler, but then she recognized his voice. Graves did not discuss the
content of the conversation on either direct examination or cross-examination. Graves
provided her cell phone number during this testimony.
{¶10} Under cross-examination, Graves admitted that she had just recently been
convicted of two counts of aggravated trafficking and one count of identify theft. She
denied that she had entered into any sentencing or plea agreement with the state in
exchange for her testimony against Tyler.
{¶11} Detective Gay of the Chillicothe Police Department investigated the case.
After reviewing the initial report made by an Officer Netter, he met with Graves at her
home. He showed her a photo line-up that included Tyler’s picture, and she identified
Tyler as one of the men who robbed her.
{¶12} Gay admitted that he collected no evidence from the crime scene,
although he obtained the recovered purse from Graves and took a picture of it. Gay
also obtained a fingerprint sample and DNA swab from Tyler, which he sent to the
Bureau of Criminal Investigations for comparison to a fingerprint obtained from Graves’s
recovered cell phone. It is unclear from the record, but apparently Tyler’s fingerprint did
not match the fingerprint on the cell phone. It is also not clear how or when Gay came
into possession of the cell phone. Apparently, Officer Netter discussed the recovery of
Ross App. No. 10CA3183 5
the cell phone in his report, but Gay did not discuss the content of the report at trial.
Gay also admitted that he did not attempt to obtain cell phone records during his
investigation.
{¶13} Gay testified that Graves contacted him regarding Tyler’s call from jail. In
response, he went to the jail in April or May 2009 and interviewed Tyler. Gay did not
testify concerning the content of this interview. Possibly in September 2009, Gay
interviewed Tyler again. Gay stated that Tyler admitted that he took the purse but told
him that he did not own a gun. Gay testified that he contacted Deputy Large at the
Ross County jail to obtain a recording of Tyler’s recorded phone conversation. Large
provided him with a CD of the recording and he listened to it.
{¶14} Deputy Large testified that he maintained the telephone recording system
at the Ross County jail. The jail records all phone conversations from 15 different
phones in the facility. A company called “Securus” owned and provided the recording
equipment on a contractual basis with the county. Large could access a password-
protected client PC on the jail grounds for accessing the recorded conversations. He
could search for a recording by date, time, number dialed, or specific phone within the
jail.
{¶15} Large stated that Gay provided him with the cell phone number testified to
earlier by Graves. He located the call in question, preserved it on a CD, kept the CD in
his possession, and later provided it to Gay. Large also testified that the CD presented
to him at trial was in fact the same CD he provided to Gay because he recognized his
handwriting on it.
Ross App. No. 10CA3183 6
{¶16} After Large testified, the state indicated its intent to play the CD recording
for the jury. Tyler objected, arguing that the state had failed to establish a foundation for
the CD’s authenticity. The trial court overruled the objection and allowed the state to
play the recording, which lasts 11 minutes.
{¶17} As the call begins, an automated telephone operator requests the caller to
identify him or herself. A male voice then spoke the name “Richard Johnson” or
possibly “Ricky Johnson.” When the line connected, Tyler greeted the responding
female voice as Nicole. Graves then asks Tyler why he identified himself as Ricky
Johnson. He does not respond to this question. He then tells Graves that “Netter”
picked him up and that he is under indictment.
{¶18} The gist of the remaining conversation is Tyler ascertaining whether
Graves intends to go to court against him, that the state’s case against him is weak
without her testimony, and how badly things may go for him and his child or children if
she decides to assist the state in prosecuting him. Tyler is apologetic, offers to pay
Graves back “for it,” and explains that he was “[expletive] up” at the time of the incident.
Later in the conversation, Graves becomes angry with Tyler after he continues to
characterize himself as a victim. She tells him, “I’m not the one who pointed a gun in
my face.” Tyler offers no denial but explains that he was “[expletive] up” at the time and
that he loves her. Later in the conversation, Graves says to Tyler, “You took my money,
you took my purse.” Tyler responds with “Man look, there isn’t nothing you got I want to
rob you for.” Graves counters with “Then why’d you do it.” Tyler does not respond to
this, but states, “Nicole, I [expletive] love you.”
Ross App. No. 10CA3183 7
{¶19} Tyler asks Graves if Brook Michaels is available to speak to him. When
Michaels picks up the line, Tyler informs her that he has been arrested and explains,
“I’m trying to make sure everything is going to follow through with y’all.” Michaels does
not respond and the call apparently ends at this point.
{¶20} Tyler opted not to present any evidence and rested at the conclusion of
the state’s case. He did, however, stipulate that he was present at Graves’s home on
March 22, 2009. For some perspective on this stipulation, one must consider Tyler’s
counsel’s opening statement. In it, counsel essentially explained Tyler’s competing
version of events that evening. Tyler admits that he was at Graves’s home and in fact
took the purse. But his reason for doing so was that he got into a fight with her over an
alleged addiction to pills. She wanted him to take her out that night, and he did not think
it that was a good idea. He took the purse, which contained the pills, in order to prevent
her from abusing them. Later, he realized that police were looking for him; so that same
morning, he presented himself to police and turned the purse over.
{¶21} The jurors found Tyler guilty of both counts of the indictment, including the
gun specifications. After the trial court sentenced him to an aggregate prison term of 18
years, he filed this appeal.
II. Assignments of Error
{¶22} Tyler assign four errors for our review:
I. The trial court erred in permitting the jury to hear the recording and
admitting it into evidence because it was not properly authenticated.
II. The trial court erred in admitting the recording into evidence because it
was not a valid business record.
Ross App. No. 10CA3183 8
III. Even if this Court determines that the recording was properly played for
the jury and admitted into evidence, the trial court erred in permitting the jury to
replay the recording during deliberations more than once.
IV. The verdict was against the manifest weight of the evidence.
III. Authentication of the Telephone Recording
{¶23} In his first assignment of error, Tyler contends that the trial court erred in
allowing the state to play the telephone recording because it did not properly
authenticate the recording, i.e., show that it was what the state claimed it to be, a
genuine recording of the conversation between Tyler and the victims.
A. Standard of Review
{¶24} The decision to admit or exclude evidence rests within the trial court’s
sound discretion. State v. McGuire (1997), 80 Ohio St. 3d 390, 400-401, 686 N.E.2d
1112. Thus, a reviewing court will not reverse the trial court’s decision absent an abuse
of discretion. State v. Apanovitch (1987), 33 Ohio St. 3d 19, 25, 514 N.E.2d 394. The
term “abuse of discretion” implies that the court's attitude is unreasonable,
unconscionable, or arbitrary. State v. Adams (1980), 62 Ohio St. 2d 151, 157-158, 404
N.E.2d 144. Furthermore, “[w]hen applying the abuse of discretion standard, a
reviewing court is not free to merely substitute its judgment for that of the trial court.” In
re Jane Doe 1 (1991), 57 Ohio St. 3d 135, 137-138, 566 N.E.2d 1181.
B. Minimal Authentication but No Abuse of Discretion
{¶25} Evid.R. 901 governs the authentication of demonstrative evidence such as
recordings of telephone conversations. The threshold for admission is quite low, as the
proponent need only submit “evidence sufficient to support a finding that the matter in
Ross App. No. 10CA3183 9
question is what its proponent claims.” Evid.R. 901(A). This means that “the proponent
must present foundational evidence that is sufficient to constitute a rational basis for a
jury to decide that the primary evidence is what its proponent claims it to be.” State v.
Payton (Jan. 25, 2002), Ross App. No. 01CA2606, 2002 WL 184922, at *3, citing State
v. Isley (June 26, 1996), Summit App. No. 17485, 1996 WL 351154, citing State v.
Caldwell (Dec. 4, 1991), Summit App. No. 14720, 1991 WL 259529. A proponent may
demonstrate genuineness or authenticity through direct or circumstantial evidence.
State v. Williams (1979), 64 Ohio App. 2d 271, 274, 413 N.E.2d 1212.
{¶26} To be admissible, a sound recording of a telephone call must be
“authentic, accurate, and trustworthy.” State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-
2762, 890 N.E.2d 263, at ¶ 109, citing State v. Rogan (1994), 94 Ohio App. 3d 140, 148,
640 N.E.2d 535. Evid.R. 901 provides for two theories upon which a trial court might
admit a sound recording. Giannelli, Evidence (3d Ed.2010) 409, Section 901.19. First,
Evid.R. 901(B)(5) provides for authentication by voice identification “whether heard
firsthand or through mechanical or electronic transmission or recording.” Second, under
Evid.R. 901(B)(9), a sound recording may be authenticated through evidence that
demonstrates a process or system used that produces an “accurate result.”
{¶27} After reviewing the record, we are concerned with the minimal effort made
in this case to authenticate the recording of the phone conversation. Nonetheless, in
light of the low threshold for authentication, we cannot conclude that the trial court
abused its discretion by admitting the CD.
{¶28} Graves testified that Tyler called her cell phone on April 26, 2009, and that
they had a conversation. She also provided her cell phone number. Graves explained
Ross App. No. 10CA3183 10
that she recognized Tyler’s voice from past familiarity and that he identified himself to
her during the phone call. Graves never testified about the content of the conversation.
More troubling, she never testified that she listened to the recording of the phone
conversation and confirmed that the recording accurately represented her conversation
with Tyler.
{¶29} Detective Gay testified that on April 28, 2009, Graves contacted him
concerning this call. In response, he contacted Deputy Large to obtain a recording of
the telephone conversation. In return, Large provided him with a CD. Gay testified that
he listened to the sound recording. But he did not testify as to his opinion concerning
the identity of the voices in the sound recording.
{¶30} Deputy Large testified about the telephone recording system at the Ross
County jail. He explained that Ross County contracted with Securus, which owned the
recording system. It was his job to manage and retrieve recorded telephone
conversations, and he could search the recordings using a password-protected “client
PC” located on the jail premises. Detective Gay provided him with the same cell phone
number that Graves had testified was her own. Large used the client PC to locate the
phone call using Graves’s cell phone number and then preserved the recording on a CD
that he provided to Detective Gay. He testified that the CD in question was the same
CD he provided to Gay because he recognized his handwriting on the CD, which bore
the date of April 26, 2009, as well as Graves’s cell phone number.
{¶31} With some reservations, we conclude that this foundational evidence
considered as a whole was minimally sufficient to support the court’s decision to admit
the recording and play it for the jurors. The evidence was sufficient to establish that the
Ross App. No. 10CA3183 11
CD was what the state claimed it to be, i.e., an accurate recording of a telephone call
made by Tyler from the Ross County jail to Graves and Michaels on April 26, 2009.
{¶32} As Tyler correctly points out, a troubling issue in this case is that no
witness expressed their opinion concerning the identity of the voices on the recording.
Likewise, no one verified that the Securus recording system accurately copies the
original conversations. We would be less critical of the state’s efforts had it approached
authentication in a more conscientious manner. The state could have taken a few
simple steps to establish a strong foundation of authenticity for this important piece of
evidence. For instance, the state could have simply asked Graves or Detective Gay
whether they had listened to the recording and whether they had an opinion about the
identity of the voices on the recording based on familiarity or remembrance. And the
state could have played the recording for Graves prior to trial and then asked her on the
stand whether it was the same conversation she had on the phone with Tyler on April
26, 2009. Barring that, Graves could have at least testified to the content of this
conversation, which could have provided some degree of support to the conclusion that
the recording was the same conversation.1
{¶33} Nonetheless, given the minimal threshold for authentication and the high
degree of deference we must afford a discretionary decision, we cannot conclude that
an abuse occurred in this case. We hold that the foundational evidence submitted at
trial was minimally sufficient to demonstrate that the recording was authentic under
Evid.R. 901. This assignment of error is meritless.
IV. The Recording Qualified as an Admission
1
Her testimony would not be hearsay, as we will discuss later in this opinion.
Ross App. No. 10CA3183 12
{¶34} In his second assignment of error, Tyler argues that the trial court abused
its discretion by admitting the telephone conversation under the hearsay exception for
business records set forth in Evid.R. 803(6). Tyler’s trial counsel raised this argument
at the time the state formally offered the recording into evidence, i.e., after it had already
been played for the jurors. Although not specifically addressing any issues of waiver,
the trial court overruled the objection and found that the state had set forth sufficient
foundational evidence to qualify the recording under the business-records hearsay
exception.
{¶35} Although Tyler contends that the CD was not admissible as a business
record, the general rule of appellate review provides that “[e]ven if a trial court has
stated an erroneous basis for its judgment, a reviewing court will affirm the judgment if it
is legally correct for another reason.” Jackson v. Ohio Bur. of Workers’ Comp. (1994),
98 Ohio App. 3d 579, 585, 649 N.E.2d 30. Thus, even if we were to assume that the
trial court erred by finding that the business-records exception applied to this recording,
we conclude that the recording was admissible in any case as an admission.
{¶36} Under Evid.R. 801(D)(2)(a), statements of a party opponent are
admissible as substantive evidence if offered against that party. Thus, Tyler's
statements in the recording are admissions and are, by definition, not hearsay.
Admissions by a party-opponent also include "the statements or questions to which [he]
responds" if the failure to deny or correct the statement or question could be considered
an adoption. State v. Spires, Noble App. No. 04 NO 317, 2005-Ohio-4471, at ¶ 38,
citing State v. Twitty, Montgomery App. No. 18749, 2002-Ohio-5595. "A party may
adopt the statement of a third person by failing to deny or correct under circumstances
Ross App. No. 10CA3183 13
in which it would be natural to deny or correct the truth of the statement." Giannelli,
Evidence (3d Ed.2010) 161, Section 801.24; see also Evid.R. 801(D)(2)(b).
{¶37} Our review of the recording demonstrates that it can properly be
characterized as a series of admissions. The recording consists principally of Tyler’s
own words and Graves’s and Michael’s statements or responses. Tyler manifested his
adoption or belief in the truth of many of Graves’s statements through silence or an
evasive response. For instance, Graves stated, “I’m not the one who pointed a gun in
my face” and “You hit me in the face with a [expletive] gun.” Instead of flatly denying
these accusations, Tyler offered apologies and explained that he was “[messed up]” at
the time.
{¶38} We recognize that Tyler may not have adopted every statement by Graves
and Michaels on the recording and that some statements may have been hearsay.
However, Tyler does not point to any specifically objectionable portions of the recording.
We apply nonconstitutional harmless-error analysis to evidentiary errors. State v.
McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, 837 N.E.2d 315, at ¶ 88; State v.
Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 74. A
nonconstitutional error is harmless when there is substantial other evidence to support
the guilty verdict. State v. Webb (1994), 70 Ohio St. 3d 325, 335, 638 N.E.2d 1023. As
we explain more fully in Section VI of this opinion, the state presented substantial
evidence of Tyler’s guilt through the victim’s testimony and Tyler’s admissions on the
telephone recording. In the absence of a specific citation to a particularly prejudicial
statement, we conclude that even if the admitted recording contained some
objectionable hearsay that any error that occurred was harmless.
Ross App. No. 10CA3183 14
V. Jury Access to the Recording in Deliberations
{¶39} In his third assignment of error, Tyler contends that the court abused its
discretion by giving the jurors the opportunity to play the telephone recording twice
during deliberations. Essentially, Tyler is arguing that the trial court placed undue
emphasis on this piece of evidence. Tyler admits that several Supreme Court cases
support the proposition that no error occurs when a court permits jurors to view or listen
to properly admitted evidence during deliberations for a second time. But Tyler urges
us to treat this as an issue of first impression and conclude that allowing jurors to listen
to this sound recording twice in deliberations, as opposed to once, constitutes error.
The state contends that the record contains no evidence that the jurors actually played
the recording more than once during deliberations and that the Supreme Court cases
Tyler cites apply in its favor.
{¶40} Ohio courts follow the majority rule, which permits the replaying of video or
audio exhibits during jury deliberations. State v. McGuire (1997), 80 Ohio St. 3d 390,
396, 686 N.E.2d 1112; State v. Loza (1994), 71 Ohio St. 3d 61, 79-80, 641 N.E.2d 1082
(per curiam); State v. Clark (1988), 38 Ohio St. 3d 252, 257, 527 N.E.2d 844 (per
curiam). “Sending properly admitted evidence into jury deliberations rests within the
sound discretion of the trial judge.” McGuire at 396. Tyler contends, however, that
these Supreme Court cases hold or imply that jurors may listen to or view exhibits once
during deliberations. To the contrary, McGuire, Loza, and Clark address only the
general issue of whether an abuse of discretion occurs when the trial court determines
that jurors should have access to sound recordings in deliberations. And these cases
hold that no abuse occurred, at least under the circumstances present. These cases do
Ross App. No. 10CA3183 15
not address the specific number of times jurors listened to the recording during
deliberation, nor do they address the specific number of times the trial court should
permit jurors to replay the recordings.
{¶41} Regardless, we agree with the state that there is no evidence in the record
that the jurors in this case actually listened to the sound recording during deliberations
more than once, even though the trial court gave them the opportunity to do so.
Moreover, we perceive no abuse of discretion in that decision. It is evident from the trial
transcript that the Ross County courthouse suffers from poor acoustics and that at least
one juror complained that he or she could not understand the recording when the state
played it at trial. Listening to the recording ourselves confirms that the sound quality is
poor and certain portions of the recording are difficult to understand. Thus, it is
understandable that the trial court would deem it appropriate to allow the jurors to listen
to the recording twice in their deliberations, merely to ensure that they understood what
it contained. And giving jurors the opportunity to listen to the recording twice does not
raise concerns that jurors might have placed undue emphasis on that piece of evidence.
Thus, we find no abuse of discretion in this decision. This assignment of error is
meritless.
VI. Manifest Weight of the Evidence
{¶42} In his final assignment of error, Tyler contends that the jury’s verdicts were
against the manifest weight of the evidence. Tyler principally attacks Graves’s
credibility as well as the demonstrative evidence associated with her injuries. Tyler also
presents arguments concerning witnesses who did not testify or the manner in which
the Chillicothe Police Department investigated the case. The state contends that the
Ross App. No. 10CA3183 16
evidence supports the jury’s verdicts because Tyler stipulated to being at Graves’s
residence on the night of the robbery, Graves testified that he robbed her, and Tyler
admitted to the crimes in the telephone recording.
{¶43} “When an appellate court considers a claim that a conviction is against the
manifest weight of the evidence, the court must dutifully examine the entire record,
weigh the evidence, and consider the credibility of witnesses. The reviewing court must
bear in mind, however, that credibility generally is an issue for the trier of fact to
resolve.” State v. Puckett, Ross App. No. 10CA3153, 2010-Ohio-6597, at ¶ 32, citing
State v. Issa (2001), 93 Ohio St. 3d 49, 67, 752 N.E.2d 904; State v. DeHass (1967), 10
Ohio St. 2d 230, 227 N.E.2d 212, at paragraph one of the syllabus. “If the prosecution
presented substantial evidence upon which the trier of fact reasonably could conclude,
beyond a reasonable doubt, that the essential elements of the offense had been
established, the judgment of conviction is not against the manifest weight of the
evidence.” Id. at ¶ 33, citing State v. Eley (1978), 56 Ohio St. 2d 169, 383 N.E.2d 132,
at syllabus (superseded by state constitutional amendment on other grounds). We will
reverse a conviction only in the exceptional case in which the evidence weighs heavily
against the conviction and it appears that the fact-finder, when resolving conflicts in the
evidence, “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, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio
App.3d 172, 175, 485 N.E.2d 717.
{¶44} In count one, the state charged Tyler with aggravated robbery, which
required the state to prove that Tyler, in attempting or committing a theft offense, had a
Ross App. No. 10CA3183 17
deadly weapon on or about his person or under his control and either displayed the
weapon, brandished it, indicated that he possessed it, or used it. R.C. 2911.01(A)(1).
{¶45} In count two, the state charged Tyler with aggravated burglary, which
required the state to prove that Tyler, by force, stealth, or deception, trespassed in an
occupied structure, when another person other than an accomplice of the offender was
present and with purpose to commit in the structure any criminal offense. In addition,
the state was required to prove that Tyler had a deadly weapon on or about his person
or under his control. R.C. 2911.11(A)(2).
{¶46} After reviewing the entire record of the trial, we conclude that this is not
one of the rare cases in which the evidence weighs heavily against the jury’s verdicts.
Graves testified that Tyler, who did not live at her home and whom she had not seen for
a month prior to the events at issue, entered it uninvited while brandishing a long black
gun. Graves stated that Tyler pointed the gun at her, took her purse, struck her in the
face when she tried to prevent him from taking it, and pushed her into a television in the
home. The state corroborated the allegation of the assault with photographs admitted
into evidence demonstrating lacerations on Graves’s jaw and shoulder.
{¶47} The state additionally corroborated Graves’s allegations of robbery and
burglary with the telephone recording. In it, Graves accused Tyler of pointing a gun at
her face and taking her purse. Tyler did not adamantly deny these accusations, as
would be expected of an innocent person, but merely attempted to excuse his actions.
Tyler’s purpose in calling Graves was quite clear, however. He wanted reassurance
that she would not pursue the charges against him, which could have also indicated to
jurors Tyler’s guilt.
Ross App. No. 10CA3183 18
{¶48} In addition, Tyler stipulated that he was present at Graves’s home that
night. Thus, the jury merely needed to accept Graves’s explanation for his presence at
her home and the taking of her purse. This is a credibility determination that we leave
to the jurors.
{¶49} Tyler argues that we should discount Graves’s testimony because the
pictures entered into evidence of her injuries depict slight lacerations, which Tyler
suggests are inconsistent with her story of the assault. The jury, however, was free to
make this observation themselves and determine whether the injuries depicted in the
pictures aligned with Graves’s testimony. Moreover, there was no medical evidence
presented by either the state or the defense as to whether the injuries in the
photographs were or were not consistent with the assault.
{¶50} Tyler additionally claims that Graves was impeached when she testified
that Tyler did not live at her address but Officer Gay later testified that Tyler’s state-
issued identification card listed Graves’s address. We fail to see how this matter
impeaches Graves’s testimony to the extent that no reasonable jury would be justified in
believing her version of events. It is possible that Tyler listed Graves’s address as his
own at some point in the past and merely failed to update his identification card. And
there was no evidence establishing when the state issued the identification card or what
proof of residency would be required to list a specific address as one’s own.
Regardless, this was the only evidence that could possibly lead jurors to conclude that
Tyler lived at Graves’s residence, and its relative weight is minimal at best.
{¶51} Tyler also claims that Graves contradicted herself when describing the
gun. Graves at first described the gun as a shotgun but then later said she was unsure
Ross App. No. 10CA3183 19
of the type of gun because the robbery took place so quickly. Again, we fail to see how
Graves’s problem identifying the type of gun used demonstrates that her other
testimony should be disregarded. It is conceivable that a witness might not be able to
specifically identify the type of gun used in a brief armed robbery and burglary.
{¶52} Tyler argues that we should view Graves’s testimony as suspect because
she admitted that she had recently pleaded guilty to a charge of trafficking and forgery
involving identity theft. However, both the state and defense counsel examined this
issue during Graves’s direct examination and cross-examinations. The jurors were free
to draw their own conclusions as to how this evidence affected the weight of her
testimony.
{¶53} Tyler lists a litany of issues that principally address the absence of
evidence or the allegedly deficient manner in which the state conducted its
investigation. Many of these issues are not in the record and are thus not reviewable on
direct appeal. For instance, Tyler points out that neither Michaels, a witness to the
crime, nor Officer Netter, the initial investigating officer, testified. Of course, because
neither testified, there is no way for us to consider how their testimony might have
affected the weight of the evidence submitted at trial.
{¶54} Tyler also complains that the state failed to establish evidence explaining
the recovery of the purse. Again, issues with the chain of custody of the purse are not
in the record. Nonetheless, Graves testified that Tyler took the purse and that she
received it later with items missing. The jury was free to accept or reject this testimony
in determining whether the state met its burden of proving the theft element of the
aggravated-robbery count.
Ross App. No. 10CA3183 20
{¶55} Finally, Tyler argues that Detective Gay obtained no search warrant, no
cell phone records, and no fingerprint or DNA evidence during his investigation. There
is no requirement that the state needs to accomplish these acts or perform forensic
investigations to establish each element of a crime beyond a reasonable doubt. The
absence of such evidence does not demonstrate that the jury lost its way in arriving at a
finding of guilt.
{¶56} In sum, we conclude that Tyler’s convictions for aggravated robbery and
aggravated burglary are not against the manifest weight of the evidence. The state
presented substantial evidence of each element of the crimes so that a reasonable fact-
finder could have found Tyler guilty beyond a reasonable doubt. This assignment of
error is meritless.
VII. Conclusion
{¶57} Testimony that the victim received a call on her cell phone from Tyler and
testimony from the deputy who retrieved the conversation from the jail recording system
provided a minimally sufficient foundational basis for authenticating the recording, and
thus no abuse of discretion occurred in its admission. The recording itself contained
Tyler’s admission and thus was not objectionable on hearsay grounds. And the trial
court did not abuse its discretion in instructing the jurors that they could listen to the
recording twice during their deliberations, as some evidence suggest that the recording
was difficult to understand. Finally, Tyler’s convictions are not against the manifest
weight of the evidence. The state presented substantial evidence concerning each
element of the crime through the testimony of the victim and Tyler’s own inculpatory
statements in the recording.
Ross App. No. 10CA3183 21
Judgment affirmed.
ABELE and MCFARLAND, JJ., concur.