State v. Rasheed , 2023 Ohio 906 ( 2023 )

[Cite as State v. Rasheed, 2023-Ohio-906.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220194
TRIAL NO. C-21CRB-16273
Plaintiff-Appellee, :
vs. :
O P I N I O N.
THERON RASHEED, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 22, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Theron Rasheed appeals his conviction for sexual
imposition under R.C. 2907.06. We affirm the conviction.
I. Facts and Procedure
{¶2} Rasheed and G.G., the complaining witness in this case, worked
together at Noodles & Company in Colerain. In August 2021, Rasheed, G.G., and four
other employees were closing the restaurant. The complaint alleged that Rasheed
walked past G.G. on multiple occasions and rubbed his pelvis against her buttocks.
{¶3} At a jury trial, G.G. testified that Rasheed walked past her “on multiple
occasions using his crotch area, his penis to rub up against the back side of me” and
that she “felt his genitals in his pants.” She also testified that Rasheed’s “hands grazed
[her buttocks] at [sic] multiple occasions.” G.G. reported the incident to the police
three days later.
{¶4} The state played its “Exhibit A,” which was a surveillance video from
inside the restaurant on the evening of the incident. G.G. identified herself as the
employee wearing a green shirt. Rasheed was wearing a gray shirt. The video showed
Rasheed make contact with G.G. multiple times. G.G. testified that either his arm, leg,
or “penis and his crotch area” touched her buttocks. She testified that there was
enough room for him to pass without touching her. While G.G. testified that she
assumed the first contact was an accident, the last encounter, where Rasheed “very
forcefully” pressed his crotch area up against G.G.’s “entire back” was the “worst of the
multiple interactions * * * he was very forceful and it was very violating.” G.G. testified
that, at this point, she was “very uncomfortable.” G.G. asserted that Rasheed was
taking photographs of her with his phone because it was facing her. She further stated
2
OHIO FIRST DISTRICT COURT OF APPEALS
that Rasheed was walking around her area sweeping near her, but the area was still
messy because there was sweeping left to do.
{¶5} G.G. resigned from Noodles & Company a week later because she felt
unsafe working at the restaurant.
{¶6} The state sought to admit a second surveillance video from the
restaurant that purported to depict Rasheed pressing the front of his body against the
back of a woman’s body two days later. G.G. was not in the second video or at the
restaurant on the date the second video was recorded. Rasheed objected to its
admission. The state argued that G.G. could authenticate the video using pictorial
testimony. The trial court overruled Rasheed’s objection to the video and allowed the
jury to view it in its entirety, limiting G.G.’s testimony to the identification of Rasheed.
{¶7} G.G. identified Rasheed in the second video, but she could not testify to
where the recording equipment was kept or identify any other employees in the second
video.
{¶8} Colerain Police Officer Brent Wethington testified that the footage from
the restaurant showed Rasheed “very clearly using [his phone] to take pictures and/or
videos of the victims.” He seized Rasheed’s cell phone to search for photographs of
G.G. but found none. Wethington testified that three days had passed since the
incident and that law enforcement could “potential[ly]” extract deleted data.
{¶9} The jury found Rasheed guilty of sexual imposition under R.C. 2907.06.
The trial court sentenced Rasheed to 60 days in jail, with a credit of ten days and 40
days suspended. The court imposed $110 in court costs, $500 in fines, placed Rasheed
3
OHIO FIRST DISTRICT COURT OF APPEALS
on probation1 for one year with counseling for sex offenses, and required him to
register as a Tier I sex offender.
II. Law and Analysis
A. The second video was improperly admitted
{¶10} Rasheed’s first and second assignments of error assert that the trial
court improperly admitted the second video. First, he argues that the state failed to
properly authenticate the video. Second, he argues that the second video contained
improper propensity evidence and was inadmissible under Evid.R. 404(B).
{¶11} We review a challenge to authentication for an abuse of discretion. State
v. Searles, 1st Dist. Hamilton Nos. C-180339 and C-180340, 2019-Ohio-3109, ¶ 7.
Evid.R. 901(A) states that “[t]he 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.” State v. Thyot, 2018-
Ohio-644, 105 N.E.3d 1260, ¶ 18 (1st Dist.). Put another way, “[t]he authentication
requirement is satisfied when the proponent presents foundational evidence or
testimony from which a rational jury may determine that the evidence is what its
proponent claims it to be.” Id., quoting State v. Crossty, 2017-Ohio-8382, 99 N.E.3d
1048, ¶ 29 (1st Dist.).
{¶12} Generally, photographic evidence may be authenticated by two means:
the “pictorial testimony” theory or under the “silent witness” theory. Thyot at ¶ 19.
Under the “pictorial testimony” theory, a sponsoring witness must establish that the
1 The docket reflects that Rasheed was placed on community control for one year “pay thru
probation,” while the judge’s sheet states that he was sentenced to probation. “Community control
is the functional equivalent of probation * * *.” State v. Chapman, 163 Ohio St. 3d 290, 2020-Ohio-
6730, 170 N.E.3d 6, ¶ 8, fn. 1.
4
OHIO FIRST DISTRICT COURT OF APPEALS
evidence is an accurate representation of the subject matter based on the witness’s
personal observation, as the evidence is merely illustrative of the witness’s testimony.
Searles at ¶ 8; see State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d
1023, ¶ 150 (differentiating between the theories and finding that the “silent witness”
theory was applicable to the evidence at issue).
{¶13} Conversely, the “silent witness” theory does not require an
independent sponsoring witness because the evidence speaks for itself and is
admissible when there is “a sufficient showing of the reliability of the process or system
that produced the photographic evidence.” (Citations omitted.) Midland Steel Prods.
Co. v. U.A.W. Local 488, 61 Ohio St.3d 121, 130, 573 N.E.2d 98 (1991) (testimony was
sufficient to show that a surveillance system and the video it produced was reliable for
purposes of authentication).
{¶14} In Searles, this court considered photographs that were admitted under
the “pictorial testimony” theory through the victim’s testimony. Searles, 1st Dist.
Hamilton Nos. C-180339 and C-180340, 2019-Ohio-3109, at ¶ 9. At trial, the victim
testified that the photographs were a fair and accurate representation of her injuries
resulting from the fight in question. Id. The victim testified that she had reviewed the
photographs and testified who took the photos of her injuries. Id. We held that the
witness properly authenticated the photographs. Authenticating evidence under the
“pictorial testimony” theory does not require calling the witness who took the
photograph; instead, the pictorial-testimony theory requires a witness with knowledge
who can testify that the photographs reflect a fair and accurate representation of the
subject matter. Id.5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Here, the second video was offered as pictorial testimony. Therefore, the
evidence should merely illustrate the witness’s testimony. That was not the case here.
G.G. was not present for the events that occurred during the video. While she could
identify Rasheed and the restaurant in the video, she could not testify first-hand to
what the video contained. The state failed to call anyone with first-hand knowledge.
As such, the trial court abused its discretion by improperly admitting a video that was
not merely illustrative of G.G.’s testimony.
{¶16} Moreover, the second video was not properly authenticated under the
silent-witness theory. G.G. could not testify to the manner in which the recording
system operated or was maintained. The state did not call anyone who could testify to
the operations or procedures that the restaurant used to record and store footage.
{¶17} The trial court abused its discretion by admitting the second video
because it was not properly authenticated.
B. Admission of the second video was harmless error
{¶18} While we agree with Rasheed that the second video was not properly
authenticated, its admission was harmless error.
{¶19} To determine whether improper admission of evidence affects a
defendant’s substantial rights, thus requiring a new trial, we first consider whether the
improper admission of evidence may have prejudiced the defendant. State v. Morris,
141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 27. Next, we look to whether
the error was harmless beyond a reasonable doubt. Id. at ¶ 28. An error is not harmless
if, under the facts and circumstances of the case, there is a reasonable probability that
the improperly-admitted evidence contributed to the conviction. Id. To make that
6
OHIO FIRST DISTRICT COURT OF APPEALS
determination, the court must excise the improper evidence from the record and
consider the remaining evidence. Id. at ¶ 29.
{¶20} An error is harmless if after “this evidence is removed, the outcome of
the trial would be the same because the remaining evidence is overwhelming.” State
v. English, 1st Dist. Hamilton No. C-180697, 2020-Ohio-4682, ¶ 68; see State v. Hood,
135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 43.
{¶21} We find that the remaining evidence overwhelmingly supported
Rasheed’s guilt and the second video was not necessary to support his conviction.
{¶22} Rasheed was convicted of sexual imposition under R.C. 2907.06, which
prohibits a person from having sexual contact with another, who is not the spouse of
the offender, when the offender knows that the sexual conduct is offensive to the other
person.
{¶23} The first video, along with G.G.’s testimony, showed that Rasheed
purposely made sexual contact with G.G. on multiple occasions. The video depicts
that, despite having room to maneuver through the restaurant and avoiding contact
with other employees, Rasheed forcefully pressed his groin against her buttocks. G.G.
testified that she was offended by the contact and that it made her uncomfortable.
{¶24} Viewing the video in conjunction with G.G.’s uncontroverted testimony,
we find overwhelming evidence that supported Rasheed’s conviction—he would have
been convicted without the improperly-admitted evidence. Therefore, any error in
admitting the second video was harmless and no new trial is required. We overrule
Rasheed’s first assignment of error.
{¶25} Rasheed also assigns as error the admission of the second video under
Evid.R. 404(B), asserting that it contained improper propensity evidence. Rasheed’s
7
OHIO FIRST DISTRICT COURT OF APPEALS
argument involving harmless error referred this court to his harmless-error argument
under his first assignment of error. Because we have determined that any error in the
admission of the second video was harmless, we overrule Rasheed’s second
assignment of error.
C. The evidence was sufficient to support the conviction and the
conviction was not contrary to the weight of the evidence
{¶26} Rasheed’s third assignment of error argues that the record is not
sufficient to show that his actions were purposeful and motivated by sexual
gratification or arousal and that his conviction is contrary to the weight of the
evidence.
The evidence was sufficient to support the conviction.
{¶27} The test for determining the sufficiency of the evidence is whether “after
viewing the probative evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt.” State v. MacDonald, 1st
Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). It presents a question of law for this court’s
review and this court should not weigh the evidence unless, after viewing the evidence,
it weighs heavily against conviction. MacDonald at ¶ 12.
{¶28} Rasheed contends that he did not violate any company or employee
policy by helping his coworkers where he is designated to work in the kitchen. He
asserts that any contact made with G.G. was incidental due to the small spaces in the
restaurant. He points out that none of the other employees who were present that
8
OHIO FIRST DISTRICT COURT OF APPEALS
evening corroborated her version of the events. Rasheed denies any allegation that he
was photographing or videotaping her, contending that the record reflects that he did
not take pictures of G.G.
{¶29} The evidence was sufficient to show that Rasheed made unwanted
sexual contact with G.G. on multiple occasions. The video shows Rasheed pressing his
pelvic area against G.G.’s backside three different times. His thin stature, when
compared to the space where G.G. was standing as he passed her, shows that he had
ample room to avoid touching her. Or he could have maneuvered through the
restaurant via a different path. Further, Rasheed avoided contact with the other four
people working in the area, including one woman who was similar in size to G.G.
{¶30} Although it appeared from the video that Rasheed took photos of G.G.,
whether he did so was irrelevant. The evidence was sufficient to show that Rasheed
intended to rub himself against G.G.’s buttocks.
The conviction was not contrary to the weight of the evidence.
{¶31} In reviewing a weight-of-the-evidence claim, this court must review “the
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses 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. Bailey,
1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v. Thompkins,
78 Ohio St.3d 380, 678 N.E.2d 541 (1997). “When evidence is susceptible to more than
one construction, a reviewing court must give it the interpretation that is consistent
with the judgment.” In re J.C., 1st Dist. Hamilton No. C-180493, 2019-Ohio-4027, ¶
20.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} The weight of the evidence and the credibility of the witnesses are
primarily for the trier of fact. Bailey at ¶ 63. In reviewing a challenge to the weight of
the evidence, this court sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton
No. C-190107, 2020 Ohio App. LEXIS 1184, ¶ 17 (Mar. 31, 2020), quoting Thompkins
at 387. But this court will not substitute its judgment for that of the trier of fact on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its
way in arriving at its verdict. Bailey at ¶ 63.
{¶33} Reversing a conviction and granting a new trial should only be done in
“exceptional cases in which the evidence weighs heavily against the conviction.” Id.“The trier of fact is in the best position to judge the credibility of the witnesses and the
weight to be given to the evidence presented.” State v. Carson, 1st Dist. Hamilton No.
C-180336, 2019-Ohio-4550, ¶ 16.
{¶34} This was not one of those exceptional cases. The evidence weighed in
favor of Rasheed’s conviction. The trial court did not lose its way or create a
miscarriage of justice. Rasheed’s third assignment of error is overruled.
III. Conclusion
{¶35} While the trial court abused its discretion by admitting improperly-
authenticated evidence, the error was harmless because Rasheed’s conviction was
overwhelmingly supported by the remaining evidence. We affirm the trial court’s
judgment.
Judgment affirmed.
CROUSE, P.J., concurs.
WINKLER, J. concurs in judgment only.
10
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
11