State v. McCarrel , 2019 Ohio 2984 ( 2019 )

[Cite as State v. McCarrel, 2019-Ohio-2984.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-660
(C.P.C. No. 16CR-5074)
v. :
(REGULAR CALENDAR)
Shatwan L. McCarrel, :
Defendant-Appellant. :
D E C I S I O N
Rendered on July 23, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellee.
On brief: Blaise G. Baker, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Shatwan L. McCarrel, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury verdict finding him guilty of unlawful sexual conduct with a minor
and breaking and entering.
{¶ 2} On September 15, 2016, appellant was indicted on two counts of unlawful
sexual conduct with a minor, in violation of R.C. 2907.04, and one count of breaking and
entering, in violation of R.C. 2911.13. The indictment alleged the offenses occurred on
September 4, 2016. The indictment further alleged appellant had previously been
convicted of a violation of R.C. 2907.04, "to wit: December 19, 2012 in Franklin County
Court of Common Pleas, * * * Unlawful Sexual Conduct with a Minor."
No. 18AP-660 2
{¶ 3} The matter came for trial before a jury beginning August 13, 2018. The first
witness for the state was C.P., age 15. C.P., whose birthday is September 28, 2002, was 13
years of age during the events charged in the indictment. C.P. resides primarily with her
mother, but she sometimes stays with her father, L.P., who resides on South Wheatland
Avenue.
{¶ 4} In September 2016, C.P. was staying with her father. C.P. has a friend,
Mikayla, who lives nearby on Apple Street with her mother, sister, and brother.
Mikalyla's mother dated an individual who went by the nickname "Shy-Shy," and who
C.P. identified at trial as appellant. (Tr. Vol. I at 50.) C.P. had informed appellant as to
her age.
{¶ 5} On two occasions, C.P. accompanied appellant to an abandoned house
located next door to Mikayla's residence. On the first occasion, C.P. went to the premises
with Mikayla and appellant. In order to gain entry, appellant broke a window on the first
floor; once inside, appellant took a toilet seat from the bathroom of the residence.
Appellant took the item because "[t]he toilet seat was broken over at Mikayla's [house]."
(Tr. Vol. I at 51.)
{¶ 6} Later that same day, C.P. went to the abandoned house with just appellant.
They entered through the broken window and went upstairs. Appellant removed C.P.'s
shorts and underwear. C.P. and appellant had previously discussed "what we were going
to do basically." (Tr. Vol. I at 56.) C.P. testified that appellant inserted his penis inside
her vagina. Appellant also placed his mouth and fingers inside her vagina. C.P. and
appellant then went back to Mikayla's house. Later that evening, C.P. returned to her
father's house; she did not tell her father what had happened.
{¶ 7} C.P. testified she later posted messages to appellant on a private Facebook
account and one of her messages to him included an inquiry whether he had used a
condom, to which he responded no. C.P. stated that appellant's Facebook name was "Shy-
Loco." (Tr. Vol. I at 61.)
{¶ 8} At trial, plaintiff-appellee, the State of Ohio, introduced several exhibits
containing screenshots of Facebook messages, and C.P. identified the exhibits as
messages she exchanged with appellant. Defense counsel objected to the introduction of
No. 18AP-660 3
state's Exhibit No. A3, one of the Facebook screenshots. The trial court overruled the
objection.
{¶ 9} C.P. testified she used her father's cell phone during the events because her
phone had been stolen. C.P.'s father later observed some of the Facebook messages. As a
result, C.P. was taken to a hospital and examined by a nurse. C.P.'s father also contacted
police officers. The officers subsequently showed C.P. a photographic array; C.P. chose a
photograph from the array, and she identified appellant at trial.
{¶ 10} L.P., the father of C.P., resides on South Wheatland Avenue. L.P. testified
he has a shared custody arrangement with C.P.'s mother, and C.P. was staying with him
on Labor Day weekend, September 2016. During that visit, L.P. became suspicious of
C.P.'s behavior. C.P. had used her father's cell phone, and L.P. observed messages on the
phone from an app that had been left open. Based on the messages he read, L.P. believed
"somebody had sexual contact with my daughter." (Tr. Vol. I at 108.) L.P. was upset and
went to the home of Mikayla's mother. Appellant was not there at the time, but he arrived
at the residence a short time later.
{¶ 11} L.P. confronted appellant with the phone messages and asked him "is that
you and did you do this and he denied it. He said that was somebody else." (Tr. Vol. I at
110.) L.P. testified that "[o]n the text it has his picture on there." (Tr. Vol. I at 118.) L.P.
phoned the police, and subsequently took C.P. to the hospital.
{¶ 12} On September 5, 2016, Columbus Police Officer Jack Snyder was dispatched
to South Wheatland Avenue following a report of a sexual assault. Officer Snyder spoke
with L.P. and advised L.P. to take C.P. to the hospital.
{¶ 13} On September 5, 2016, Amy Bock, a licensed clinical professional,
conducted a forensic interview with C.P. at Nationwide Children's Hospital. During the
interview, C.P. told Bock she was at her friend Mikayla's house, where they were watching
a movie. C.P. later went outside and "Shy" also went outside and "asked her if she wanted
to go to this old abandoned house that was next door." C.P. stated they went to the
second floor of the abandoned house "and he told her come here, pulled her closer to him
and kissed her on the lips. She then said that he pulled down her shorts and underwear,
that he then pulled down his own pants and boxers and said they had sex." C.P. "did
clarify that by sex she said that Shy put his penis in her vagina. She said it was painful
No. 18AP-660 4
and that it went on a few seconds." (Tr. Vol. II at 142.) During the interview, C.P.
disclosed "genital to genital contact." (Tr. Vol. II at 145.) C.P. also reported that Shy
"licked her vagina and put his fingers inside of her vagina and squeezed her butt." (Tr.
Vol. II at 146.) C.P. stated that "[h]e told her not to tell anyone because he didn't want to
go to jail for having sex with an underage." (Tr. Vol. II at 143.)
{¶ 14} Katherine Doughty, a licensed nurse practitioner at Nationwide Children's
Hospital, performed a sexual-assault kit examination of C.P. Doughty collected various
swabs, including a vaginal swab and an oral swab. During the examination, Doughty
noted a bruise "at the 6:00 o'clock position" with respect to the "hymenal tissue or the
tissue that surrounds the vaginal opening." Doughty also noted "between the 6:00 and
7:00 o'clock there was a shallow abrasion with some bleeding." (Tr. Vol. II at 180.)
Doughty testified that "[t]hese injuries are diagnostic of penetrative trauma and it is
consistent with the disclosures that [C.P.] has provided in her forensic interview of the
alleged perpetrator's penis going into her vagina, and it is concerning for acute sexual
assault." (Tr. Vol. II at 182.) C.P. was 13 years of age at the time of the examination.
{¶ 15} On September 6, 2016, Columbus Police Detective James Shockey
presented a photographic array of six individuals to C.P., and she identified the individual
depicted in "position 4" of the array. C.P. stated that "number 4 is Shy." (Tr. Vol. II at
227.)
{¶ 16} On September 8, 2016, Detective Shockey accompanied another detective to
the abandoned house on Apple Street. At trial, the state introduced photographs taken by
detectives at the location, including a picture of a toilet with a missing toilet seat.
{¶ 17} John Peigare, the property manager for Beacon Property Management and
Realty, Inc. ("Beacon Property"), testified that Beacon Property managed the property of
the abandoned house on Apple Street, Columbus, for Patriarch Investments. In
September 2016, the residence was vacant and boarded. Peigare stated that appellant did
not have permission or authorization to be on the property. Peigare did not recall who the
tenant was prior to September 2016. He testified that a previous tenant "would not have
been able to give anyone permission because the house was vacant and boarded." (Tr.
Vol. II at 211.)
No. 18AP-660 5
{¶ 18} Scott Tennyson, a maintenance worker for Beacon Property, testified he was
familiar with the abandoned property on Apple Street, Columbus. In September 2016,
Tennyson observed that a board on a window of the residence had been removed. The
window was located next to the back door. At trial, Tennyson identified a work order,
dated September 7, 2016, to secure the premises.
{¶ 19} Lynndsey Simon, a forensic scientist with the Columbus Police Department,
testified that test results from the vaginal swabs of C.P. confirmed male DNA from "at
least two individuals," and that appellant "cannot be excluded as the contributor of the
major component in this profile." (Tr. Vol. II at 250.) Simon further testified that "all
paternity related male relatives of [appellant] cannot be excluded as the contributor as a
major component of this male Y-STR profile." (Tr. Vol. II at 251-52.)
{¶ 20} At the close of the state's case-in-chief, appellant made a Crim.R. 29 motion
for judgment of acquittal with respect to the charge of breaking and entering. The trial
court denied the motion. At trial, the parties stipulated that appellant had been convicted
of unlawful sexual conduct with a minor on December 19, 2012.
{¶ 21} By judgment entry filed August 28, 2018, the trial court sentenced appellant
to 8 years each on Counts 1 and 2 (unlawful sexual conduct with a minor) and 12 months
as to Count 3 (breaking and entering). The court ordered Counts 1 and 2 to be served
consecutive to each other, but concurrently with Count 3.
{¶ 22} On appeal, appellant sets forth the following two assignments of error for
this court's review:
[I.] The trial court erred in overruling Defendant-Appellant's
Motion for Judgment of Acquittal pursuant to Rule 29 of the
Ohio Rules of Criminal Procedure.
[II.] The trial court erred when it overruled Defendant-
Appellant's objections and admitted testimony regarding the
contents of written messages.
{¶ 23} Under his first assignment of error, appellant asserts the trial court erred in
denying his Crim.R. 29 motion for judgment of acquittal as to the charge of breaking and
entering. According to appellant, the state failed to prove he lacked permission to enter
the property at issue.
No. 18AP-660 6
{¶ 24} A motion for judgment of acquittal under Crim.R. 29 "tests the sufficiency
of the evidence," and therefore "an appellate court reviews a trial court's denial of a
motion for acquittal using the same standard for reviewing a sufficiency of the evidence
claim." State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-3892, ¶ 12. In reviewing a
sufficiency of the evidence challenge, "[t]he relevant inquiry for an appellate court is
whether the evidence presented, when viewed in a light most favorable to the prosecution,
would allow any rational trier of fact to find the essential elements of the crime proven
beyond a reasonable doubt." State v. Morock, 10th Dist. No. 14AP-559, 2015-Ohio-3152,
¶ 9, citing State v. Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38.
{¶ 25} R.C. 2911.13(A) defines the offense of breaking and entering, and states: "No
person by force, stealth, or deception, shall trespass in an unoccupied structure, with
purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised
Code, or any felony." Thus, the elements of breaking and entering under R.C. 2911.13(A)
are "(1) the use of force, stealth, or deception, (2) to trespass in an unoccupied structure,
(3) with purpose to commit a theft offense or felony inside." State v. Payton, 8th Dist.
No. 76967 (Dec. 14, 2000).
{¶ 26} As noted, appellant contends the state failed to show he lacked permission
to be on the premises. In support, appellant relies in part on the definition of stealth as
taken from the Ohio Jury Instructions, which defines stealth to mean "any secret or sly act
to avoid discovery and to gain entrance into or to remain within a structure of another
without permission." Ohio Jury Instructions, CR Section 511.13(A) (Rev. 9-11-10).
According to appellant, although the current property manager and a maintenance
worker testified at trial, neither individual knew whether appellant had permission from
the prior tenant to be on the property.
{¶ 27} In response, the state asserts appellant's argument is misplaced as it posits
the existence of a hypothetical prior tenant who may have given appellant permission to
enter. The state maintains that "being a prior tenant would not have given the
hypothetical ex-tenant any ability to authorize the entry." (Emphasis sic.) (Appellee's
Brief at 14-15.)
{¶ 28} Under Ohio law, "proof of guilt to sustain a breaking and entering
conviction may be made by circumstantial evidence, real evidence, and direct evidence, or
No. 18AP-660 7
any combination of the three." State v. Williams, 8th Dist. No. 98578, 2013-Ohio-1546,
¶ 10, citing State v. Collins, 8th Dist. No. 98350, 2013-Ohio-488, ¶ 15. In this respect,
direct evidence of lack of permission is not required to sustain a conviction for breaking
and entering. See State v. Frost, 2d Dist. No. 93-CA-19 (Mar. 9, 1994) (state not required
to present testimony of owner of drive-thru to establish lack of permission as testimony of
other individuals established they had entered drive-thru without permission).
{¶ 29} In the present case, the state presented evidence that the property at issue
was abandoned and boarded up at the time of the events in question (i.e., September
2016). C.P. testified that appellant gained access to the property on Apple Street by
breaking a window in the back of the house; once inside, appellant went to a bathroom
and removed a toilet seat from the premises. A maintenance worker for Beacon Property
(the property manager for the premises) observed an unsecured window at the location
and placed a work order on September 7, 2016. The property manager testified he did not
know appellant and appellant did not have permission from the owner to be on the
premises.
{¶ 30} While appellant contends a prior tenant could have given consent, there was
simply no evidence at trial suggesting appellant had ever been granted such permission.
Further, we agree with the state that a prior tenant would have no prerogative currently in
relation to the property. See, e.g., State v. Ray, 6th Dist. No. L-04-1273, 2005-Ohio-
5886, ¶ 20 ("past consent does not constitute current consent"). (Emphasis sic.) More
significantly, there was no evidence appellant had permission from the current owner to
enter the premises on the date of the incident. As set forth above, the evidence indicated
the house was abandoned and boarded shut, and appellant entered the residence by
breaking a window. Here, the trier of fact could reasonably infer appellant lacked
permission to enter the premises. See, e.g., Williams at ¶ 12 (forced entry suggestive of
lack of permission to enter store). Accordingly, we reject appellant's contention that the
state failed to present sufficient evidence to support the elements of breaking and
entering.
{¶ 31} Appellant's first assignment of error is not well-taken and is overruled.
{¶ 32} Under his second assignment of error, appellant asserts the trial court erred
in admitting, over objection, evidence regarding the contents of social media messages.
No. 18AP-660 8
Appellant notes that defense counsel objected at trial to the admission of screenshots of
alleged Facebook text messages between C.P. and appellant, asserting lack of foundation.
Appellant further notes he did not testify at trial and never admitted sending text
messages to C.P.
{¶ 33} The record indicates the state offered into evidence, during the direct
examination of C.P., several exhibits containing screenshots of messages posted on a
Facebook page. C.P. testified that the exhibits involved text messages she exchanged with
appellant following the events in the abandoned house. Defense counsel objected to the
state's introduction of Exhibit A3, a screenshot of the messages at issue, on the basis
"[t]here is nothing to establish that was on my client's account - - Facebook account." (Tr.
Vol. I at 63.) The trial court overruled the objection.
{¶ 34} In general, "the admission and exclusion of evidence is within the broad
discretion of the trial court and will not be reversed absent an abuse of discretion and
material prejudice." State v. Jones, 7th Dist. No. 00 JE 18, 2002-Ohio-2791, ¶ 21.
{¶ 35} Authentication of evidence is governed by Evid.R. 901(A). State v. Howard,
1st Dist. No. C-170453, 2018-Ohio-3692, ¶ 14. The requirement of authentication or
identification "is a condition precedent to admissibility of evidence." State v. Ollison, 10th
Dist. No. 16AP-95, 2016-Ohio-8269, ¶ 47. Pursuant to Evid.R. 901(A), this requirement
"is satisfied by evidence sufficient to support a finding that the matter in question is what
its proponent claims."
{¶ 36} Evid.R. 901(B) sets forth "a list of illustrations that describe, without
limiting, some ways in which evidence may be authenticated as required by Evid.R.
901(A)." State v. Moorer, 9th Dist. No. 27685, 2016-Ohio-7679, ¶ 8. Such methods
include the testimony of a witness "with knowledge * * * that a matter is what it is claimed
to be," Evid.R. 901(B)(1), as well as "[a]ppearance, contents, substance, internal patterns
or other distinctive characteristics, taken in conjunction with circumstances," Evid.R.
901(B)(4).
{¶ 37} Under Ohio law, "[t]he threshold for authentication is low: ' "The proponent
need not offer conclusive evidence as a foundation [but] must merely offer sufficient
evidence to allow the question as to authenticity or genuineness to reach the jury." ' "
Ollison at ¶ 47, quoting State v. Callender, 10th Dist. No. 15AP-15, 2015-Ohio-4255, ¶ 32,
No. 18AP-660 9
quoting State v. Caldwell, 9th Dist. No. 14720 (Dec. 4, 1991). In this respect, "[c]ourts
have interpreted Evid.R. 901(B)(1) 'to allow " 'any competent witness who has knowledge
that a matter is what its proponent claims may testify to such pertinent facts, thereby
establishing, in whole or in part, the foundation for identification.' " ' " State v. Ross, 10th
Dist. No. 17AP-141, 2018-Ohio-3027, ¶ 37, quoting State v. Gibson, 6th Dist. No. L-13-
1222, 2015-Ohio-1679, ¶ 49, quoting Secy. of Veterans Affairs v. Leonhardt, 3d Dist. No.
3-14-04, 2015-Ohio-931, ¶ 43, quoting TPI Asset Mgt., LLC v. Conrad-Eiford, 193 Ohio
App.3d 38, 2011-Ohio-1405, ¶ 15 (2d Dist.). Further, " '[c]ircumstantial evidence, as well
as direct, may be used to show authenticity.' " Id., quoting State v. Paster, 8th Dist. No.
100458, 2014-Ohio-3231, ¶ 32.
{¶ 38} Ohio courts have held that "photographs of text messages can be admissible
as an admission of a party-opponent under Evid.R. 801(D)(2)(a) if they are properly
authenticated." State v. Yeager, 7th Dist. No. 18 JE 0008, 2019-Ohio-1095, ¶ 39. See
also State v. Davis, 12th Dist. No. CA2015-05-015, 2016-Ohio-1166, ¶ 21 ("statements
from text messages are properly authenticated and are admissible as a party-opponent
admission when the recipient of the messages identifies the messages as coming from the
defendant"); State v. Inkton, 8th Dist. No. 102706, 2016-Ohio-693, ¶ 93 (Facebook post,
which was properly authenticated by testimony of detective and co-defendant, "was
admissible under Evid.R. 801(D)(2) as an admission by a party-0pponent.").
{¶ 39} In a related vein, Ohio courts have addressed the issue as to the
admissibility of evidence from social media content, including Facebook, under the
authentication requirements of Evid.R. 901. See, e.g., State v. Caslin, 10th Dist. No.
17AP-613, 2018-Ohio-5362, ¶ 20 (trial court did not err in admitting screenshot of
Facebook page where witness "had knowledge the screenshot of the Facebook page was
what it purported to be" and there was no evidence to support inference that screenshot
photographs were contrived or altered); Gibson at ¶ 49 ("combination of both personal
knowledge of the appearance and substance of the public Facebook profile pages, taken in
conjunction with * * * direct and circumstantial evidence was sufficient to meet threshold
admissibility requirement" of Evid.R. 901(B)(1)); Ross at ¶ 39-40 (testimony by witness
that she was Facebook friends with defendant and that defendant responded to message
posted by witness sufficient for purposes of authentication under Evid.R. 901).
No. 18AP-660 10
{¶ 40} In the present case, C.P. testified the screenshots admitted at trial were
private text messages she sent to appellant via Facebook. She also stated that appellant's
Facebook name was "Shy-Loco." (Tr. Vol. I at 61.) C.P.'s father, L.P., testified he read the
messages and observed appellant's "picture on there." (Tr. Vol. I at 118.) The content of
the messages, including an inquiry by C.P. regarding the use of a condom and the
corresponding response, contain information consistent with the events at issue. On
review, we conclude the testimony of the witnesses, "taken in conjunction with" other
direct and circumstantial evidence, was "sufficient to meet the threshold admissibility
requirement" of Evid.R. 901. Gibson at ¶ 49. See also Yeager at ¶ 41-42 (trial court did
not err in admitting Facebook messages where victim, one of the recipients of messages,
testified they were transmitted by way of Facebook messenger account of defendant's
girlfriend, and where content of message supported conclusion that message at issue was
sent by defendant).
{¶ 41} Thus, the trial court did not abuse its discretion in admitting the exhibits at
issue. Appellant's second assignment of error is not well-taken and is overruled.
{¶ 42} Based on the foregoing, appellant's two assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.
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