State v. Taylor

[Cite as State v. Taylor, 2012-Ohio-5421.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98107
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALI TAYLOR
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-553483
BEFORE: Boyle, P.J., Celebrezze, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 21, 2012
ATTORNEY FOR APPELLANT
Craig J. Morice
P.O. Box 392
Wickliffe, Ohio 44092
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James M. Rice
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Ali Taylor, appeals his convictions for felonious
assault and having a weapon while under a disability. He raises three assignments of
error for our review:
[1.] The trial court abused its discretion in permitting the proffering
and admission of state’s exhibits 1.1 - 1.6 and 4 - 19 in contravention of
Ohio Rules of Evidence 403, 602, and 1003.
[2.] In light of the unfairly prejudicial evidence erroneously admitted
against defendant/appellant, said evidence was insufficient as a matter of
law to support the verdict and conviction rendered in the trial court.
[3.] The verdict and conviction entered against defendant/appellant
was against the manifest weight of the evidence.
{¶2} Finding no merit to his appeal, we affirm.
Procedural History and Factual Background
{¶3} In August 2011, Taylor was indicted on three counts: two counts of
felonious assault, in violation of R.C. 2903.11(A)(1) and (A)(2), with one- and three-year
firearm specifications, and one count of having a weapon while under a disability, in
violation of R.C. 2923.13(A)(2). The indictment arose from allegations that on the night
of August 3, 2011, Taylor shot a 15-year-old male in the parking lot of a convenience
store. The following facts were presented to a jury.
{¶4} The victim, T.W., testified that on the evening of August 3, 2011, he was at
“C Town,” a convenience store and deli, hanging out with some of his friends. A man,
who appeared to be drunk, came up to one of T.W.’s friends and shook his hand. The
man then “slapped” his friend, and his friend hit the man back. T.W. said that he was
not really paying attention, but the “next thing he [knew],” the man had a gun in his hand
and started shooting. T.W. said everyone took off running, including him, and he got
shot in his buttocks. T.W. heard three shots. He ran to his aunt’s house around the
corner, and she called the police.
{¶5} T.W. testified that the shooter was “big” and was wearing a “black do-rag”
and “jogging pants.” He said the gun looked like a .38 revolver. He was not able to
identify the shooter in a photo array. He testified that he did not know the shooter, did
not talk to the shooter, and everything happened “too fast.”
{¶6} Officer Troy Strong of the Cleveland Police Department testified that he
responded to C Town, but was redirected to an apartment near there. He spoke with the
victim, who gave him a description of the shooter. He and his partner went to C Town
and viewed surveillance cameras from the store.
{¶7} Detective Ronda Gray testified that after she was assigned to the case, she
learned about the surveillance video that was taken at C Town on the night of the
shooting. She went to the store on August 5, 2011, to view the surveillance video. She
testified that the video recording system “was quite an elaborate surveillance system,” and
had the capability to record DVDs, but the store manager did not know how to do it.
The store manager also told her the video recording was on a loop and would record over
the video, so she recorded the surveillance video with her cell phone as she watched it.
{¶8} Detective Gray explained that there were “quite a few frames” because
there were several different camera views. She watched each of them and hit record
every time she saw the suspect. She then emailed the videos on her cell phone to her
supervisor, Sergeant Matt Putnam. Her supervisor told her that the videos were upside
down on his computer, so she went back to the store on August 6 to re-record the
surveillance video on her cell phone so that the video would not be upside down when
viewing it on a computer.
{¶9} Detective Gray testified that she also showed the videos on her cell phone
to Detective Ronald Berry. Detective Berry recognized Taylor from arresting him in the
past. Taylor became a suspect at that point.
{¶10} Detective Gray viewed the state’s exhibits 1.1 through 1.6 in court and
identified them as the six segments of the videos that she took with her cell phone. She
explained that the videos depicted the suspect going into the C Town store, walking
around it, leaving, and then shooting at someone in the parking lot outside the store. She
said the videos that were played in court were accurate as far as she remembered. She
then identified still-frame photos that she explained were taken from the videos that she
recorded.
{¶11} After Taylor became a suspect, Detective Gray learned that he had been
arrested in Bedford several hours after the shooting at the C Town store. Detective Gray
had Taylor transferred from the Bedford jail to the Cuyahoga County jail.
{¶12} Detective Gray explained on cross-examination that when she was recording
the surveillance video with her cell phone, she hit reverse so that she could capture the
suspect’s face for a longer time. She further explained that she executed a search
warrant at Taylor’s mother’s home, where Taylor also resided. She never found a gun or
bullets in Taylor’s mother’s home.
{¶13} Detective Berry testified that on August 6, 2011, he viewed a video on
Detective Gray’s cell phone. The state played a video in court that Detective Berry
identified as the same video that he viewed on Detective Gray’s cell phone. Detective
Berry said that when he saw the suspect in the video walk into the C Town store, he
recognized him as Taylor. Detective Berry explained that he recognized Taylor because
he had arrested Taylor in the past. Detective Berry had “seen” Taylor “more than five
times in the past,” but said that it had been “about ten years or so” since the last time.
{¶14} Detective Berry identified a still-frame photo of Taylor walking into the C
Town store. He explained that this was the same shot from the video where he had first
identified Taylor on Detective Gray’s cell phone. Detective Berry stated that the video
that was played in court was just as he “remember[ed] seeing it” when he viewed it on
Detective Gray’s cell phone.
{¶15} Officer Val Closs of the Bedford Police Department testified that in the
early morning hours of August 4, 2011, she responded to a call involving Taylor. She
testified that she remembered that Taylor was wearing a blue striped shirt, dark pants, and
a blue “do-rag.” She was shown a still-frame photo of Taylor that according to
Detectives Gray and Berry, shows him walking into the C Town store. Officer Closs
stated that Taylor was wearing the same clothing when she picked him up around 2:00
a.m. on August 4. She further identified a booking photo of Taylor where he was
wearing the same clothes except without the “do-rag.” She explained that she had given
the “do-rag” to Taylor’s mother according to department policy.
{¶16} Mohammed Suleiman testified that he is the manager of C Town. He
testified that he recognized Taylor as a customer at C Town. He said that Taylor used to
be a regular customer and had been in C Town “[w]ell over 50 times.”
{¶17} Suleiman testified that C Town has eight, “high quality” cameras; “two in
the office, two in the front, one outside, two in the back and one on the side of the store.”
He explained that the cameras record on a “36-hour loop,” which meant that after 36
hours, the video automatically records over itself.
{¶18} Suleiman further explained that the videos are stored on a “DVR.” He said
that the DVR has the capability to record the videos with a DVD. He stated that police
officers came to view the surveillance videos at the store and recorded them on a cell
phone. He viewed the video in court and stated that it was a true and accurate depiction
of the surveillance video that was recorded at his store on the night of the shooting.
{¶19} On cross-examination, Suleiman testified that he never made a statement to
police officers until a few days before trial. He agreed on cross-examination that police
officers never brought a DVD to record the surveillance video, despite that capability.
He further explained that a police officer recorded the surveillance video on his cell
phone on the night of the shooting. A female officer came back later and recorded it on
her cell phone.
{¶20} The jury found Taylor guilty on all three counts and specifications. The
trial court merged the felonious assault convictions and firearm specifications. It
sentenced Taylor to eight years for felonious assault, three years for the firearm
specifications, and three years for having a weapon while under a disability, for an
aggregate sentence of 14 years in prison. The trial court further advised Taylor that he
would be subject to three years of mandatory postrelease control upon his release from
prison.
Evidentiary Issues
{¶21} In his first assignment of error, Taylor contends that the trial court erred and
abused its discretion by admitting the duplicate recording (state’s exhibits 1.1 through
1.6) and still-frame photos (state’s exhibits 4 through 19) of the store’s surveillance video
because they were (1) unfairly prejudicial, (2) could not be authenticated, and (3) did not
suffice as reliable “duplicates” of the original recording.
{¶22} The admission or exclusion of evidence lies in the trial court’s sound
discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A trial court will
be found to have abused its discretion when its decision is contrary to law, unreasonable,
not supported by the evidence, or grossly unsound. See State v. Boles, 187 Ohio App.3d
345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.) citing Black’s Law Dictionary
11 (8th Ed.Rev.2004). Further, this abuse of discretion must have materially prejudiced
the defendant. State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994), citing
State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984).
{¶23} Taylor raises evidentiary issues relating to authentication and the best
evidence rule. Evid.R. 901 provides for the authentication or identification of evidence
prior to its admissibility. The rule provides, in pertinent part: “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.” Evid.R. 901(A). By way of illustration, Evid.R. 901(B) provides that
evidence may be properly authenticated by “testimony of witness with knowledge” that “a
matter is what it is claimed to be.”
{¶24} The common law “best evidence rule” in Ohio is codified in Evid.R. 1001
through 1008. It provides: “[t]o prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except as otherwise
provided in these rules[.]” Evid.R. 1002. The “best evidence rule” rests on the fact
that an original writing is more reliable, complete, and accurate as to its contents and
meaning. United States v. Holton, 116 F.3d 1536, 1545 (D.C.Circ.1997).
{¶25} Evid.R. 1001(3) defines an original of a “writing or recording” as “the
writing or recording itself or any counterpart intended to have the same effect by a person
executing or issuing it.” Evid.R. 1001(4) provides that:
A “duplicate” is a counterpart produced by the same impression as the
original, or from the same matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or electronic re-recording,
or by chemical reproduction, or by other equivalent techniques which
accurately reproduce the original.
{¶26} Here, the videos and still-frame photographs taken from the surveillance
video were duplicates of the original recording. Evid.R. 1003 governs the admissibility
of duplicates, and provides: “[a] duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.”
{¶27} Further, the party seeking to exclude a duplicate has the burden of
demonstrating that the duplicate should be excluded. State v. Tibbetts, 92 Ohio St.3d
146, 160, 2001-Ohio-132, 749 N.E.2d 226. “The decision to admit duplicates, in lieu of
originals, is one that is left to the sound discretion of the trial court.” State v. Easter, 75
Ohio App.3d 22, 27, 598 N.E.2d 845 (4th Dist.1991). In State v. Barton, 12th Dist. No.
CA2005-03-036, 2007-Ohio-1099, ¶ 80, the court explained:
When the party opposing the duplicate’s admission raises a genuine
question as to the duplicate’s trustworthiness, the trial court must determine
whether the testimony authenticating the duplicate is sufficient to convince
the court “of the improbability of the original item having been exchanged
with another or otherwise tampered with.” [Easter] at 26. The trial
court’s ruling on the sufficiency of authentication evidence is also reviewed
under an abuse of discretion standard. Id.{¶28} Detective Gray testified that she went to the store and viewed the
surveillance videos from the different cameras on a computer. She explained that she
recorded each video where she saw the suspect. As she watched the videos, she
recorded them with her iPhone. She showed the recorded videos to Detective Berry on
her cell phone; Detective Berry recognized Taylor from previous dealings he had with
Taylor. Detective Gray also emailed the videos on her cell phone to her supervisor.
{¶29} The state played the videos in court on either a television or a computer.
During Detective Gray’s testimony, she identified the videos as the same videos that she
had recorded with her cell phone. She further explained that the videos were accurate
copies of the store surveillance videos. The state also played the videos during
Detective Berry’s testimony. Detective Berry stated that the videos were the same as the
ones that he viewed on Detective Gray’s cell phone.
{¶30} The state played the videos during the store manager’s testimony as well;
the store manager explained that the video portrayed what was recorded inside and
outside of his store on the day of the shooting. The store manager further testified that
the videos played in court were a true and accurate depiction of the surveillance video
that was recorded at his store on the night of the shooting.
{¶31} Detective Gray sufficiently testified to satisfy the requirements under
Evid.R. 901, as she had personal knowledge regarding both the original recording and the
duplicate and was able to state that the duplicate correctly reproduced the original.
Evid.R. 901(A) and (B)(1).
{¶32} Taylor argues that the trial court erred in admitting the videos because they
were only “portions of the surveillance video taken by the digital recording system in
place,” and “were purportedly taken via Detective Gray’s operating a cell phone video
camera on at least two occasions.” But even Taylor concedes that despite these two
facts, the videos and photographs were permissible “duplicates” under Evid.R. 1001(4).
He argues, however, that “issues surrounding [the videos] making cast further doubt on
their authenticity and reliability.”
{¶33} First, Taylor implies that Detective Gray lied when testifying in court. He
states that Detective Gray testified that “she could not record from the digital video
surveillance recording system in place at the C Town Deli onto a DVD,” so she recorded
it with her cell phone. He asserts that the store manager’s testimony contradicted
Detective Gray’s, because the store manager stated that the system was capable of
recording the surveillance recordings onto a DVD. Detective Gray, however, actually
testified that the system was capable of recording onto a DVD, but that the store manager
did not know how to do it. The store manager’s testimony does not contradict Detective
Gray’s testimony.
{¶34} Taylor next argues that Detective Berry, who identified Taylor, only viewed
the videos on Detective Gray’s cell phone, not on the computer as they were played in
court. Detective Berry testified, however, that the videos that were played in court were
the same videos that he viewed on Detective Gray’s cell phone.
{¶35} Taylor further argues that the state did not establish the proper chain of
custody for the videos and still-frame photos. He argues that Detective Gray’s
supervisor, Sergeant Putnam, did not testify, even though he is the one who received the
emailed videos. Taylor further maintains that no one testified how the videos were
transmitted, or how the still-frame photos were obtained from the videos.
{¶36} The chain of custody is part of the authentication and identification
requirement in Evid.R. 901. State v. Brown, 107 Ohio App.3d 194, 200, 668 N.E.2d 514(3d Dist.1995). The prosecution bears the burden of establishing a proper chain of
custody. State v. Moore, 47 Ohio App.2d 181, 183, 353 N.E.2d 866 (9th Dist.1973).
Chain of custody can be established by direct testimony or by inference. State v. Conley,
32 Ohio App.2d 54, 60, 288 N.E.2d 296 (3d Dist.1971). The state, however, has no duty
to eliminate every possibility that tampering or substitution occurred. Id. The state
must only show that it is reasonably certain that a substitution, tampering, or alteration did
not occur. Id.{¶37} We agree with Taylor that the state failed to establish a proper chain of
custody with respect to the videos and still-frame photos. No one testified as to how the
still-frame photos were obtained or how the emailed videos ended up with the state.
Detective Gray testified that she emailed them to her supervisor, but she did not know
how they were transmitted to the state.
{¶38} Nonetheless, we conclude that the state provided sufficient testimony from
Detective Gray, Detective Berry, and the store manager that the videos were not altered or
tampered with such that they should be deemed unreliable. Further, any break in the
chain of custody goes to the weight afforded to the evidence, not to its admissibility.
Columbus v. Marks, 118 Ohio App. 359, 194 N.E.2d 791 (10th Dist.1963); State v. Mays,
108 Ohio App.3d 598, 671 N.E.2d 553 (8th Dist.1996).
{¶39} We conclude that Taylor did not meet his burden to establish that the
duplicate videos and still-frame photos should have been excluded as he did not raise
genuine questions as to their trustworthiness. Accordingly, we decline to hold that the
trial court’s admission of the evidence was an abuse of discretion.
{¶40} Taylor’s first assignment of error is overruled.
Sufficiency and Manifest Weight of Evidence
{¶41} In his second and third assignments of error, Taylor argues that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence.
{¶42} When an appellate court reviews a record upon a sufficiency challenge,
“‘the 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. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶43} In reviewing a claim challenging the manifest weight of the evidence,
[t]he question to be answered is whether there is substantial evidence upon
which a jury could reasonably conclude that all the elements have been
proved beyond a reasonable doubt. In conducting this review, we must
examine the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether 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.
(Internal quotes and citations omitted.) Leonard at ¶ 81.
{¶44} With respect to Taylor’s sufficiency argument, he concedes that if we find
that the trial court properly admitted the videos and still-frame photos, that the state
presented sufficient evidence such that any rational trier of fact could have found the
essential elements of the crimes proven beyond a reasonable doubt. Because we
concluded that the trial court properly admitted that evidence, Taylor’s sufficiency
argument is without merit.
{¶45} Regarding manifest weight of the evidence, Taylor again claims that the the
videos and still-frame photos were “fatally defective.” In addition to that argument,
Taylor asserts that no other evidence corroborated that he was even at the store. He
contends that the victim could not identify him, and the store manager did not hear a
shooting take place outside of his store. We disagree.
{¶46} Detective Gray showed the surveillance video to Detective Berry.
Although it had been over ten years, Detective Berry testified that he recognized Taylor
from previous dealings. After Taylor became a suspect, Detective Gray discovered that
he had been arrested in Bedford a few hours after the shooting at the C Town store.
{¶47} The Bedford police officer who arrested Taylor testified that he was wearing
a dark blue striped shirt, a blue “do-rag,” and dark jeans when she arrested him. When
showed a photo of Taylor in the C Town store, the Bedford police officer testified that he
was wearing those exact same clothes when she arrested him. The Bedford officer
further identified a booking photo of Taylor wearing the same striped shirt and pants, but
not the “do-rag.” She explained that she gave it to Taylor’s mother, along with some of
Taylor’s other belongings.
{¶48} After reviewing the entire record, weighing the evidence and all
reasonable inferences, considering the credibility of witnesses, and resolving conflicts in
the evidence, we conclude that the jury did not clearly lose its way and create such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Thus,
Taylor’s arguments regarding manifest weight of the evidence are overruled.
{¶49} Accordingly, Taylor’s second and third assignments of error are overruled.
{¶50} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR