State v. Spencer , 2019 Ohio 3800 ( 2019 )

[Cite as State v. Spencer, 2019-Ohio-3800.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, : Case No. 19CA6
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
THOMAS J. SPENCER, :
Defendant-Appellant. : RELEASED: 09/11/2019
______________________________________________________________________
APPEARANCES:
Jerry L. McHenry, Esq., Pickerington, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Justin B. Benedict, Assistant
Pickaway County Prosecutor, Circleville, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Thomas Spencer appeals his convictions for two counts of forgery in
violation R.C. 2913.31(A)(3). Spencer contends that the trial court erred when it
admitted unauthenticated surveillance footage and photographs that depicted him
cashing checks and that trial counsel rendered ineffective assistance by not objecting to
this evidence. However, the state introduced evidence sufficient to support a finding
that the surveillance footage and photographs were what the state claimed. Thus, we
conclude that the trial court did not err, let alone commit plain error, and counsel’s
failure to make a futile objection did not constitute ineffective assistance.
{¶2} Spencer also contends that the trial court violated his right to confrontation
when it admitted hearsay evidence that the checks had been forged and that trial
counsel rendered ineffective assistance by not objecting to this evidence. Even if we
Pickaway App. No. 19CA6 2
presume error occurred, Spencer has not demonstrated a reasonable probability that it
affected the outcome of the trial. Thus, he has not established plain error or ineffective
assistance, and we affirm the trial court’s judgment.
I. FACTS
{¶3} The Pickaway County grand jury indicted Spencer on two counts of
forgery and two counts of receiving stolen property, and he pleaded not guilty. At trial,
Carol Smiley, Assistant Vice President of Accounting at The Savings Bank, testified that
a customer notified the bank that checks had been paid on its account that the customer
had not issued. The bank closed the account and contacted police.
{¶4} Detective Jon Farrelly of the Circleville Police Department testified that he
received an email from Connie Campbell, a Savings Bank employee, about “false
activity at the bank” and investigated the matter. Campbell gave him copies of two
checks that appeared to be drawn on the account of Custom Maintenance Service, Inc.,
but had not been issued by the business. The checks were dated August 10, 2018, and
the check numbers were sequential. Each check was payable to Spencer in the
amount of $879.14. The back of the first check had a handwritten endorsement and
printed information indicating a transaction had occurred on August 17, 2018, at
12:20:52 p.m. The back of the second check had a handwritten endorsement, a
handwritten driver’s license number, and printed information indicating a transaction had
occurred on August 17, 2018, at 1:10:59 p.m. Detective Farrelly ran the driver’s license
number through OLEG and learned that it belonged to Spencer. Detective Farrelly also
contacted Custom Maintenance, which did not recognize Spencer’s name.
Pickaway App. No. 19CA6 3
{¶5} Detective Farrelly testified that Campbell gave him surveillance footage
from The Savings Bank branches in Ashville, Ohio, and Circleville, Ohio, along with still
photographs made from the Circleville footage. The Ashville footage, dated August 17,
2018, depicts Spencer and another man entering the bank together. Spencer
approaches a teller, endorses a check, gives it to the teller, and appears to put his
driver’s license on the counter. The teller begins to process the check through a device
at 12:20:51 p.m. Later, Spencer puts his license away, and the teller gives him cash.
The other man also cashes a check, and the men leave. The Ashville footage also
depicts two women entering the bank together around 12:32 p.m., cashing checks, and
leaving around 12:37 p.m. The Circleville footage, also dated August 17, 2018, depicts
Spencer and the other man inside the bank together wearing the same clothing as in
the Ashville footage. Spencer approaches a teller, endorses a check, and gives it to the
teller along with his driver’s license. The teller appears to write something, begins to
process the check through a device at 1:11:14 p.m., and gives Spencer his license and
cash. The other man also cashes a check.
{¶6} Sheila Sagraves testified that she had gone to school with Spencer. They
later reconnected, and he asked if she “wanted to make a little bit of money cashing
checks.” She did and gave Spencer her “I.D. information.” One day in August 2018,
Sagraves, Jeremiah Palladino (her boyfriend), Spencer, and Michelle Fernan met with a
man who went by the name “Black.” They went to The Savings Bank in Ashville, where
Black handed out pre-printed checks. Spencer and Palladino, who Sagraves identified
as the other man in one of the photographs, went into the bank together. Sagraves and
Fernan also went into the bank together. When they returned to the car, they gave the
Pickaway App. No. 19CA6 4
money from the cashed checks to either Black or Spencer and got $100 each in return.
The group then went to another Savings Bank location. Black did not threaten anyone
and did not have a weapon. During trial, Sagraves examined one of the checks made
payable to Spencer and testified that the checks she cashed were “exactly the same
kind” except they listed her name and address. She also testified that she never
worked for Custom Maintenance or thought that the checks were legitimate. Sagraves
admitted that she participated in the scheme to get drug money, had pleaded guilty to
criminal conduct in connection with these events, and hoped to get probation because
of her testimony.
{¶7} Spencer testified that he and his wife, Fernan, agreed to perform work for
a construction company whose name Spencer could not recall. They received their first
paycheck on July 17, 2018, and two men from the construction company took them to
cash it. The men told Spencer they needed to “hold the money,” and because Spencer
saw they had a gun, he gave the money to them. The men explained that they needed
Spencer to cash checks from other companies for work that he was going to perform.
Spencer claimed that he was forced to cash more checks for about a month.
{¶8} The trial court dismissed the receiving stolen property counts. The jury
rejected Spencer’s affirmative defense of duress and found him guilty on the forgery
counts. The court sentenced Spencer to 12 months in prison on each forgery count and
ordered him to serve those sentences consecutive to one another for an aggregate
sentence of 24 months.
II. ASSIGNMENTS OF ERROR
{¶9} Spencer assigns the following errors for our review:
Pickaway App. No. 19CA6 5
1. The Appellant was denied his right to a fair trial, due process of law,
his right to confront witnesses and equal protection of the law when
Detective Farrelly and Bank Vice President Smiley testified as to
hearsay evidence as to what another person(s) told them. This was in
violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the
United States Constitution and Article I, Sec. 10 of the Ohio
Constitution.
2. Evidence of a videotape and still photographs from that tape, were not
properly authenticated by the witness Detective Farrelly and were
improperly admitted into evidence. As a result, the Appellant was
denied his right to confront and cross-examine evidence designed to
prove his guilt. He was denied his right to have only competent
evidence adduced against him. He was denied a fair trial. This was a
denial of his rights pursuant to the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution and Article I[,] Section
10 of the Ohio Constitution.
3. Trial counsel rendered ineffective assistance of counsel to the
Appellant, by failing to object to the evidence of the videotapes and the
still photographs, and subsequently their admission into evidence.
This was a denial of Appellant’s rights to counsel, a fair trial, due
process of law and equal protection of the law as guaranteed by the
Fifth, Sixth and Fourteenth Amendments of the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
For ease of discussion, we address the assignments of error out of order.
III. LAW AND ANALYSIS
A. Authentication
{¶10} In the second assignment of error, Spencer contends that the trial court
erred when it admitted the surveillance footage and photographs. He asserts that the
state laid no foundation to establish the authenticity of this evidence, noting that
Detective Farrelly did not operate the cameras at the banks or create the photographs
from the surveillance footage. In the third assignment of error, Spencer contends in part
that trial counsel rendered ineffective assistance by not objecting to the surveillance
footage and photographs.
Pickaway App. No. 19CA6 6
{¶11} Spencer essentially seeks plain error review in connection with his claim
that the trial court erred. “Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Crim.R. 52(B). “A
silent defendant has the burden to satisfy the plain-error rule and a reviewing court may
consult the whole record when considering the effect of any error on substantial rights.”
State v. Davis, 4th Dist. Highland No. 06CA21, 2007-Ohio-3944, ¶ 22, citing United
States v. Vonn, 535 U.S. 55, 59, 122 S. Ct. 1043, 152 L. Ed. 2d 90 (2002).
{¶12} “To establish plain error, a defendant must show that (1) there was an
error or deviation from a legal rule, (2) the error was plain and obvious, and (3) the error
affected the outcome of the trial.” State v. Mohamed, 151 Ohio St. 3d 320, 2017-Ohio-
7468, 88 N.E.3d 935, ¶ 26. The defendant must “demonstrate a reasonable probability
that the error resulted in prejudice—the same deferential standard for reviewing
ineffective assistance of counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “Notice of plain error under Crim.R.
52(B) is to be taken with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St. 2d 91, 372
N.E.2d 804 (1978), paragraph three of the syllabus.
{¶13} To prevail on an ineffective assistance claim, a defendant must show: “(1)
deficient performance by counsel, i.e., performance falling below an objective standard
of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but
for counsel’s errors, the proceeding’s result would have been different.” State v. Short,
129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Pickaway App. No. 19CA6 7
Failure to satisfy either part of the test is fatal to the claim. See Strickland at 697. The
defendant “has the burden of proof because in Ohio, a properly licensed attorney is
presumed competent.” State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 62. We “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’ ” Strickland at 689, quoting Michel v. Louisiana, 350
U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955).
{¶14} “Before a trial court may admit evidence, Evid.R. 901 requires the
proponent to identify or authenticate the evidence.” State v. Vermillion, 4th Dist. Athens
No. 15CA17, 2016-Ohio-1295, ¶ 13. Evid.R. 901(A) states: “The 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.” “This threshold requirement for authentication of evidence is low and does not
require conclusive proof of authenticity.” State v. Pyles, 4th Dist. Scioto No. 17CA3790,
2018-Ohio-4034, ¶ 48. The proponent of the evidence need only show a reasonable
likelihood of authenticity. Id. “Circumstantial, as well as direct, evidence may be used
to show authenticity.” Vermillion at ¶ 14.
{¶15} Two methods for authenticating photographic evidence are the pictorial
testimony theory and the silent witness theory. Midland Steel Prods. Co. v. Internatl.
Union, United Auto., Aerospace & Agricultural Implement Workers of Am., Local 486, 61
Ohio St. 3d 121, 129-130, 573 N.E.2d 98 (1991). Under the pictorial evidence theory,
“ ‘the photographic evidence is merely illustrative of a witness’ testimony and it only
Pickaway App. No. 19CA6 8
becomes admissible when a sponsoring witness can testify that it is a fair and accurate
representation of the subject matter, based on that witness’ personal observation.’ ” Id.
at 129, quoting Fisher v. State, 7 Ark.App. 1, 5, 643 S.W.2d 571 (1982). The state
failed to establish admissibility pursuant to this theory because no witnesses testified
that they saw Spencer cash the checks and that the surveillance footage and
photographs were a fair and accurate representation of what occurred.
{¶16} Pursuant to the silent witness theory, “ ‘the photographic evidence is a
“silent witness” which speaks for itself, and is substantive evidence of what it portrays
independent of a sponsoring witness.’ ” Id. at 130, quoting Fisher at 6. The
“photographic evidence may be admitted upon a sufficient showing of the reliability of
the process or system that produced the evidence.” Id. at paragraph three of the
syllabus. Testimony from an individual with personal knowledge of the surveillance
system’s recording process is not required. Vermillion at ¶ 17, 20.
{¶17} The state satisfied the low threshold requirement for authentication under
the silent witness theory. Detective Farrelly testified that he obtained the surveillance
footage and photographs from a bank employee. The footage depicts tellers processing
two checks for Spencer on the same date that appears in the transactional information
printed on the back of the checks and at nearly the exact time. The teller in the
Circleville footage appears to write something after Spencer gives the teller his check
and driver’s license, which is consistent with the fact that his driver’s license number
was handwritten on the check with a 1:10:59 p.m. transaction time. The surveillance
footage is also consistent with Sagraves’ testimony about the check cashing scheme.
The Ashville footage depicts Spencer and Palladino entering the bank together and
Pickaway App. No. 19CA6 9
cashing checks and two women entering together and cashing checks. The Circleville
footage depicts Spencer and Palladino entering the bank to cash checks less than an
hour later wearing the same clothing they wore in the Ashville bank. Under these
circumstances, the trial court could reasonably determine that the surveillance systems
were reliable and that the footage and photographs were what the state claimed.
{¶18} The trial court did not err when it admitted the footage and photographs,
and counsel’s failure to make a futile objection did not constitute deficient performance.
State v. Cordor, 2012-Ohio-1995, 969 N.E.2d 787, ¶ 29 (4th Dist.). Accordingly, we
overrule the second assignment of error, and we overrule the third assignment of error
to the extent it asserts trial counsel rendered ineffective assistance in connection with
the admission of the surveillance footage and photographs.
B. Hearsay
{¶19} In the first assignment of error, Spencer contends the trial court violated
his right to confrontation when it admitted hearsay evidence. Specifically, he asserts
that Detective Farrelly and Smiley testified about statements others at The Savings
Bank or Custom Maintenance made about the checks being forged without any showing
by the state that the declarants were unavailable to testify. In the third assignment of
error, Spencer argues in part that trial counsel rendered ineffective assistance by not
objecting to this evidence. We set forth the standards for plain error review and
ineffective assistance of counsel in Section III.A.
{¶20} Even if we presume error occurred, Spencer has not demonstrated a
reasonable probability that it resulted in prejudice. Spencer asserts that without this
evidence, he likely would have been entitled to a judgment of acquittal at the close of
Pickaway App. No. 19CA6 10
the state’s case. Thus, he would not have testified and essentially incriminated himself
by asserting the affirmative defense of duress.
{¶21} Spencer’s argument is not well taken because even without the
challenged evidence, the state still presented sufficient evidence to convict him, i.e.,
“ ‘viewing the evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable
doubt.’ ” State v. Maxwell, 139 Ohio St. 3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146,
quoting State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). To convict Spencer of the forgery offenses, the state had to show that he
uttered, i.e., issued, published, transferred, used, put or sent into circulation, delivered,
or displayed, writings he knew to have been forged with purpose to defraud or knowing
that he was facilitating a fraud. R.C. 2913.31(A)(3); R.C. 2913.01(H). The surveillance
footage and checks show that Spencer uttered two writings. Sagraves’ testimony about
how Spencer recruited her to cash forged checks similar to the ones Spencer cashed
and the fact that Spencer cashed checks with the same date and dollar amount less
than one hour apart at different bank locations is circumstantial evidence that he knew
the checks were forged and acted with purpose to defraud or knowing he was
facilitating a fraud.
{¶22} Accordingly, we overrule the first assignment of error, and we overrule the
third assignment of error to the extent it asserts that trial counsel rendered ineffective
assistance in connection with the admission of hearsay evidence.
Pickaway App. No. 19CA6 11
IV. CONCLUSION
{¶23} Having overruled the assignments of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Pickaway App. No. 19CA6 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.