State v. Baker

[Cite as State v. Baker, 2016-Ohio-3471.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-224
v. : (C.P.C. No. 13CR-1663)
Larry Baker, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 16, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Clark Law Office and Toki M. Clark, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Larry Baker, appeals from a judgment of the Franklin
County Court of Common Pleas entered on February 25, 2015, which sentenced him to a
two-year term of imprisonment on a single count of burglary following a guilty verdict in a
trial by jury. Specifically, Baker challenges the authenticity of a video used against him as
well as the sufficiency and weight of the evidence against him. For the following reasons,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On Monday, September 24, 2012, a pastor with the Rock City Church was in
the church offices at 950 Michigan Avenue in Columbus, Ohio preparing to deposit the
collection money obtained on the preceding Sunday. He opened the safe in his office,
removed packets of checks, other donation receipts from online sources, and an envelope
of cash. The cash envelope was clearly marked "cash" and had the amount listed on the
outside, approximately $1200. (Tr. Vol. II at 39.)
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{¶ 3} After placing the envelopes on his desk, the pastor left his office briefly to
use the restroom down the hall from his office. On the way back, he spoke briefly with the
only other person working in the building that day, the church's youth pastor. In total, he
was away from his office for approximately five minutes. When he returned to his office
the cash envelope was gone.
{¶ 4} Initially believing he had merely misplaced the envelope or misremembered
ever having it, he investigated by contacting members of the church who took and
counted the collection in order to confirm that indeed there had been a cash envelope.
However, after he exhausted those avenues, he contacted Integrated Building Systems
("IBS") (the landlord from which the church rented the office space) to determine if the
building had security camera records. IBS did have a security camera system and one of
the cameras captured activity in the hallway in the area of the route between an outside
entry door and the doorway of the pastor's office.
{¶ 5} The pastor contacted the police and either on the day of the theft,
September 24, 2012, or the day after, a Columbus police officer arrived at the scene and
reviewed the video with the pastor that had been captured by IBS' system. The pastor fast
forwarded and rewound through the video with the police officer until they found a
segment of video that showed some activity. The pastor requested from IBS a copy of the
video segment showing activity. Employees of IBS made a copy and gave it to the pastor
who, in turn, delivered it into the hands of the police.
{¶ 6} The video, which was ultimately introduced into evidence and played at
trial, is in the record before this Court, and we have reviewed it. It shows a man (whom
the jury ultimately determined was Baker) entering the building and slowly ambling from
doorway to doorway looking inside each room. From viewing the video, he is dressed in a
shirt and tie, has a messenger bag slung across his chest, and appears to be clutching
some papers. When he enters the pastor's office, there is a longer period in which he is
not visible than when he looked in any of the other doorways. After this period, he sticks
his head out and carefully looks both directions up and down the hall before pulling his
head back into the office. Seconds later, he exits the office with some envelopes or papers
in his grasp. He pauses briefly to look over his shoulder and then lopes, with soft
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exaggerated jogging strides, down the hall and out the outer door of the church offices,
both opening and closing the door slowly.
{¶ 7} The pastor did not know who the man was, but he said that, despite the fact
that the church offices are not open to the public or advertised by signs, he had entered
the church offices once before, approximately three to six months prior to the day of the
theft. On that occasion, when confronted by staff, he told them he was collecting for some
charity or organization, gave the church staff a pamphlet, and left. Despite the fact that
the pastor did not know Baker's identity, by a method not reflected in the record, the
police came to suspect that Baker was the man shown in the video. Thus, in December
2012, a Columbus police detective went to speak to Baker. He showed Baker
photographic stills taken from the video. Baker admitted the photographs looked like him
but did not admit that they were he and did not admit to having been in the Rock City
Church offices. Baker related that he goes to a great number of places, to pass out
resumes and flyers seeking donations for the homeless.
{¶ 8} A Franklin County Grand Jury indicted Baker on March 26, 2013 for a
single count of burglary. Apparently because of a service delay, Baker was not arraigned
until August 1, 2014, when he pled not guilty. On January 26, 2015, a jury trial in the case
began. The facts related above were introduced into evidence during that trial, and on
January 29, 2015, the jury found Baker guilty. On February 25, 2015, the trial court
sentenced Baker to serve two years in prison.
{¶ 9} Baker now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 10} Baker presents four assignments of error for review:
[1.] THE VERDICT OF GUILTY IS NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE.
[2.] THE CONVICTION OF APPELLANT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
[3.] THE TRIAL COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT'S MOTIONS FOR ACQUITTAL.
[4.] THE TRIAL COURT ERRED IN FAILING TO EXCLUDE
MODIFIED VIDEO EVIDENCE THAT WAS NOT
AUTHENTICATED.
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For clarity of analysis, we address the assignments of error out of order.
III. DISCUSSION
A. Fourth Assignment of Error–Whether the Trial Court Erred in
Failing to Exclude the Surveillance Video
{¶ 11} Baker argues that the surveillance video introduced into evidence against
him was not properly authenticated, that there was evidence that the time stamp on it
could have been tampered with, and that it was "whittled down" from a much lengthier
video. (Baker's Brief at 11.)
{¶ 12} There is no evidence that the time stamp on the video was or could have
been tampered with. Indeed, the IBS witness who testified about the security system
expressly testified that, although the recorder occasionally is off by a few minutes and
needs to be adjusted, once a video is recorded, the time stamp is part of the video, and
there is no way, short of "TV show land" style editing to change the date and time. (Tr.
Vol. II at 145.)
{¶ 13} While witnesses testified that security cameras record a great deal of footage
of which this excerpt was only one small part, no witnesses testified that the surrounding
footage held any relevance at all to this case. The officer who reviewed the video with the
pastor testified that the two of them were "fast forwarding and rewinding through the
video to make sure [they] got everything" and "the segment that I - - contained [Baker] on
it was, maybe, a couple of minutes. No longer than that." (Tr. Vol. II at 153.) In the
absence of some reason to suspect that other parts of the video were potentially relevant,
we find no evidence in the record to support that any other portion of the video footage
available holds any importance as to whether or not the excerpt shown to the jury is
admissible.
{¶ 14} Authenticity is a condition precedent to admissibility but can be "satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims." Evid.R. 901(A). In a classic case of photographic authentication, the
person who took the photographs or videos would testify as to how and when they were
taken and that they show what they purport to show. See, e.g., State v. Pickens, 141 Ohio
St.3d 462, 2014-Ohio-5445, ¶ 150. However, in some contexts (including security
cameras), the Supreme Court of Ohio has embraced the " ' "silent witness" theory. Under
that theory, the photographic evidence is a "silent witness" which speaks for itself, and is
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No. 15AP-224
substantive evidence of what it portrays independent of a sponsoring witness.' " Id.,quoting Midland Steel Products Co. v. Internatl. Union, United Auto., Aerospace &
Agriculture Implement Workers, Local 486, 61 Ohio St.3d 121, 129-30 (1991), quoting
Fisher v. State, 7 Ark.App. 1, 5-6 (1982). In other words, when a witness can testify about
the reliability of the recording system, including, for example, the positioning of the
cameras and the method of recording and producing the video, the video will be
considered properly authenticated in the absence of some countervailing reason to believe
that the video is defective or has been altered in some respect. Id. at ¶ 151-52.
{¶ 15} In this case, a representative of IBS testified about the positioning of the
cameras, how they were activated, how they recorded, and how the excerpt was created
for the pastor in this case. In addition, a police officer who was present when the excerpt
was selected by fast forwarding and rewinding in order to ascertain the boundaries of the
potentially relevant footage, testified briefly about that process. In the absence of
countervailing evidence or reasons to believe that this video is anything other than what it
purports to be, the testimony by the IBS witness and the officer was sufficient to establish
the authenticity of the video recording.
{¶ 16} Baker's fourth assignment of error is overruled.
B. First, Second, and Third Assignments of Error–Whether Baker's
Conviction was Against the Manifest Weight of the Evidence,
Whether it was Supported by Sufficient Evidence, and Whether a
Rule 29 Motion for Acquittal Should Have Been Granted
{¶ 17} In his first assignment of error, Baker alleges that his convictions were not
supported by sufficient evidence. Sufficiency is:
"[A] term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether
the evidence is legally sufficient to support the jury verdict as
a matter of law." * * * In essence, sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain
a verdict is a question of law.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11, quoting State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997); Black's Law Dictionary 1594 (6th Ed.1990).
"In reviewing a record for sufficiency, '[t]he relevant inquiry is whether, after 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.
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No. 15AP-224
Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus.
{¶ 18} Although Baker's third assignment of error challenges the denial of his
motion for acquittal, this does not necessitate a separate review because "[a] motion for
acquittal under Crim.R. 29(A) is governed by the same standard as the one for
determining whether a verdict is supported by sufficient evidence." State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, citing State v. Carter, 72 Ohio St.3d 545, 553
(1995); Thompkins at 386.
{¶ 19} Baker's second assignment of error challenges the manifest weight of the
evidence. The Supreme Court has "carefully distinguished the terms 'sufficiency' and
'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are 'both
quantitatively and qualitatively different.' " Eastley at ¶ 10, quoting Thompkins at
paragraph two of the syllabus.
Weight of the evidence concerns "the inclination of the greater
amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to
the jury that the party having the burden of proof will be
entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them.
Weight is not a question of mathematics, but depends on its
effect in inducing belief."
(Emphasis deleted.) Id. at ¶ 12, quoting Thompkins at 387; Black's at 1594. In manifest
weight analysis, "the appellate court sits as a 'thirteenth juror' and disagrees with the
jury's resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v. Fla.,
457 U.S. 31, 42 (1982). " 'The court, reviewing the entire record, weighs the evidence and
all reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id.
at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). However, even
though manifest weight is a different standard from sufficiency, because the evidence
against Baker in this case was overwhelming and does not come close to failing either
measure of sufficiency or weight, we find it effective to analyze these assignments of error
together.
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No. 15AP-224
{¶ 20} The Ohio Revised Code defines the offense of burglary, in part, applicable to
this case as follows:
(A) No person, by force, stealth, or deception, shall do any of
the following:
(1) Trespass in an occupied structure * * * when another
person * * * is present, with purpose to commit in the
structure * * * any criminal offense.
R.C. 2911.12(A)(1).
(C) "Occupied structure" means any * * * building * * * to
which any of the following applies:
***
(4) At the time, any person is present * * * in it.
R.C. 2909.01(C)(4). "Trespass," as used in R.C. 2911.12(A)(1) and as relevant to this case,
is to "[k]nowingly enter or remain on the land or premises of another," "without privilege
to do so." R.C. 2911.21(A)(1); see also, R.C. 2911.10 (providing that for purposes of R.C.
2911.11 to R.C. 2911.13 "the element of trespass refers to a violation of section 2911.21 of
the Revised Code").
{¶ 21} Baker argues that his conduct as shown by the evidence does not meet these
elements because when he entered the building he had no intent to commit a crime and
could not have known that, only moments before Baker wandered in, the pastor had taken
money from the safe and left it unattended on his desk while he went to the restroom.
Baker therefore urges us to find that this was a "theft of opportunity" and not burglary.
(Baker's Brief at 5.) However, although burglary can be committed by entering an
occupied structure by force, stealth, or deception with the already-fully-formed purpose to
commit a criminal offense, Baker fails to note that the crime of burglary occurs upon a
"trespass" in an occupied structure. R.C. 2911.12(A)(1). "Trespass" is a concept that
includes more than just the moment when one enters a forbidden area, but also
knowingly "remain[ing] on the land or premises of another" without privilege to do so.
R.C. 2911.21(A)(1); R.C. 2911.12(A)(1). Once Baker saw the money, as even his brief does
not dispute, he formed the intent to steal it, and he remained in the church's office (where
he had no privilege to be) in order to steal the money and then escape. The video clearly
reflects that he was stealthy in his exit, peering around corners, exiting with exaggerated
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No. 15AP-224
gentle strides, and carefully opening and closing the door to the outside, making his exit
silent. In short, Baker's readily apparent attempts at stealth helped him to evade the
hearing of the persons present in the building and to thereby "remain" and "trespass" on
the premises long enough to steal the money and escape with it. This is burglary. "While
the term, 'stealth,' is not defined in the Revised Code, this court has defined that term to
include 'any secret, sly or clandestine act to avoid discovery and to gain entrance into or to
remain within a residence of another without permission.' " State v. McBride, 10th Dist.
No. 10AP-585, 2011-Ohio-1490, ¶ 23, quoting State v. Lane, 50 Ohio App.2d 41, 47
(1976); State v. Wallace, 10th Dist. No. 08AP-2, 2008-Ohio-5260, ¶ 43. The video in this
case and the testimony of the witnesses are sufficient evidence, when viewed " 'in a light
most favorable to the prosecution, [to have permitted] a[] rational trier of fact [to] have
found the essential elements of the crime proven beyond a reasonable doubt.' " Monroe at
¶ 47, quoting Jenks at paragraph two of the syllabus.
{¶ 22} In addition, it could not be clearer from the video exactly what Baker is
doing when he peers around the corner, eyebrows raised and mouth agape to check for
potential witnesses, before striding with exaggerated care down the hall to softly open and
close the door in making his escape. Even his own defense counsel at trial characterized
Baker's stealthy behavior as "cartoonish." (Tr. Vol. II at 189.) We have no difficulty
concluding that this conviction is also not against the manifest weight of the evidence.
{¶ 23} Accordingly, we overrule Baker's first, second, and third assignments of
error.
IV. CONCLUSION
{¶ 24} Having overruled all four of Baker's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur.
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