State v. Rios

[Cite as State v. Rios, 2011-Ohio-4720.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0059
vs. : T.C. CASE NO. 09CR0204
JUAN RIOS :
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 16th day of September, 2011.
. . . . . . . . .
Andrew D. Wilson, Pros. Attorney, Atty. Reg. No.0073767, Andrew
R. Picek, Asst. Pros. Attorney, Atty. Reg. No. 0082121, P.O. 1608,
Springfield, OH 45501
Attorney for Plaintiff-Appellee
Keith O’Korn, Atty. Reg. No.0069834, 440 Polaris Parkway, Suite
150, Westerville, OH 43082
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Juan Rios, appeals from his conviction for
vandalism, R.C. 2909.05(B)(2).
{¶ 2} On the morning of February 17, 2009, Lieutenant Vernon
Whitt of the Jail Division of the Clark County Sheriff’s Department
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learned that a window in the dayroom of the north block on the
fifth floor of the jail had been broken. At that time, Defendant
was being held in a cell next to the dayroom, awaiting trial on
a capital murder charge, and had access to the dayroom.
{¶ 3} Lieutenant Whitt reviewed recordings of calls made from
a telephone in the dayroom on the evening before, February 16,
2009. In a call made to Shianne Rice, a male caller was heard
to say that he “had been working on this hole all f-----g day.”
The caller also asked Rice to assist him in bringing drugs into
the jail through a broken window.
{¶ 4} Defendant was indicted on one count of vandalism, R.C.
2909.05(B)(2). At Defendant’s trial, Lieutenant Whitt identified
the male voice heard on the recorded telephone calls, which were
played for the jury, as Defendant’s voice. Clark County Facilities
Director Jackie Ashworth testified that the cost of replacing panes
broken from the window was $1,400.00.
{¶ 5} Defendant was found guilty of the vandalism charge and
was convicted. He was sentenced to a one year prison term.
Defendant filed a notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED
THE STATE TO PLAY TWO PORTIONS OF RECORDED JAIL PHONE CALLS AND
THEN ADMITTED SAID CALLS AS AN EXHIBIT.”
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{¶ 7} The admission or exclusion of evidence rests within the
sound discretion of the trial court and will not be disturbed on
appeal absent an abuse of that discretion. State v. Sage (1987),
31 Ohio St.3d 173.
{¶ 8} “‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. It is to be expected that most instances of
abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or
arbitrary.
{¶ 9} “A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.” AAAA Enterprises, Inc. v. River Place
Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 10} Ann Woodruff testified that she is employed by the Clark
County Information Services Department. Woodruff testified that
Clark County has entered into a contract with a service in Texas
to record calls made by inmates in the Clark County Jail from
telephones made available to them there. The calls are traceable
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to a calling card purchased by an inmate. Woodruff is able to
retrieve those calls using an internet web interface.
{¶ 11} Woodruff testified that Lieutenant Vernon Whitt of the
Clark County Sheriff’s Department asked her to download telephone
calls made on February 23, 2009, from a particular telephone in
the Clark County Jail. She did so, and transcribed those calls
onto a tape which she marked with her initials. The tape was
introduced as State’s Exhibit 2.
{¶ 12} Lieutenant Whitt corroborated Woodruff’s testimony
concerning the request he made of her to record certain phone calls.
He re-recorded two of those calls onto a disc, which was marked
as State’s Exhibit 1. Whitt testified that the calls were made
from a telephone in a day room of the jail to which Defendant Rios
had access. Whitt testified that the calls were collect calls
made to Shianne Rice. Whitt identified the male voice heard on
the tapes as the voice of Defendant Rios.
{¶ 13} Before the recording of telephone calls marked as State’s
Exhibit 1 was played for the jury, Rios objected on several grounds,
including “relevancy” and “chain of custody.” The court overruled
what it characterized as Defendant’s “foundational” objections
based on Woodruff’s testimony concerning how the calls were
transcribed. State’s Exhibit 1 was played for the jury. In one
of the recorded calls, the male voice Lieutenant Whitt had
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identified as Defendant’s voice is heard to say, with reference
to the broken window, that he “had been working on this hole all
f-----g day.”
{¶ 14} Shianne Rice testified that Rios called her from the
jail in February of 2009. Rice testified that Defendant told her
a window in the jail was broken, but he didn’t say how it had been
broken.
{¶ 15} Evid.R. 103 states, in pertinent part:
{¶ 16} “(A) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes evidence unless
a substantial right of the party is affected, and
{¶ 17} “(1) Objection. In case the ruling is one admitting
evidence, timely objection or motion to strike appears of record
stating the specific ground of objection, if the specific ground
was not apparent from the context.”
{¶ 18} Rios argues that the trial court erred when it allowed
State’s Exhibit 1 to be played for the jury, for two reasons.
First, because “one of the snippets played implicated the Appellant
in soliciting another to illegally convey contraband into the Clark
County Jail.” Rios made that objection at trial. The objection
was apparently grounded on Evid.R. 404(B) and its prohibition
against evidence of other crimes, wrongs, or acts. Second, because
“the State utterly failed to provide any foundation for how
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Lieutenant Whitt would have any ability or knowledge to identify
Appellant’s voice on a recorded phone call . . .” Rios made no
objection on that basis at trial.
{¶ 19} The court overruled Defendant’s objection to evidence
that Defendant intended to bring drugs into the jail through the
hole in the broken window, finding “that’s relevant because it
goes to show identity or intent or plan.” (T. 60). Those matters
are identified by Evid.R. 404(B) as exceptions to evidence of other
crimes, wrongs, or acts, that Evid.R. 404(B) otherwise prohibits.
Those exceptions also include “motive.”
{¶ 20} Evidence establishing motive, intent, scheme or plan
is always material because it shows why one version of events should
be believed over another. State v. Crotts, 104 Ohio App.3d 432,
2004-Ohio-6650, at ¶20. Defendant argued that he is not the only
inmate who could have broken the window or spoken about it.
Evidence that Defendant intended to bring drugs through the broken
window is admissible to prove a motive on his part for breaking
the window, which is the conduct that was the basis of the crime
with which he was charged. We find no abuse of discretion.
{¶ 21} Defendant did not specifically object at trial to
Lieutenant Whitt’s identification of the male voice heard on
State’s Exhibit 1 as Defendant’s voice, on the ground that
Lieutenant Whitt failed to provide the necessary foundational
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evidence demonstrating how he knew that. Any error for that reason
in admitting the evidence is therefore waived for purposes of
appeal. Evid.R. 103(A)(1). Plain error may nevertheless be
noticed. Crim.R. 52(B). Plain error does not exist unless it
can be said that but for the error, the outcome of the proceeding
clearly would have been different. State v. Long (1978), 53 Ohio
St.2d 91.
{¶ 22} Defendant’s argument implicates Evid.R. 901, which
provides, in pertinent part:
{¶ 23} “(A) General provision
{¶ 24} “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.
{¶ 25} “(B) Illustrations. By way of illustration only, and
not by way of limitation, the following are examples of
authentication or identification conforming with the requirements
of this rule:
{¶ 26} “(1) Testimony of witness with knowledge. Testimony that
a matter is what it is claimed to be.
{¶ 27} “* * *
{¶ 28} “(5) Voice identification. Identification of a voice,
whether heard firsthand or through mechanical or electronic
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transmission or recording, by opinion based upon hearing the voice
at any time under circumstances connecting it with the alleged
speaker.”
{¶ 29} “Voice identification is established by opinion
evidence, that is, by testimony of a witness that, based on his
familiarity with a speaker’s voice, it is his belief that the voice
sought to be identified or authenticated is that of the specific
speaker.” Weissenberger’s Ohio Evidence Treatise (2010 Ed.),
§901.68. “The proponent of voice identification testimony must
establish by way of foundation that the witness has some familiarity
with the alleged speaker’s voice.” Id., at §901.71. Failure to
satisfy the familiarity requirement is subject to an objection
pursuant to Evid.R. 602, which provides: “A witness may not testify
to a matter unless evidence is introduced sufficient to the support
a finding that the witness has personal knowledge of the matter.”
{¶ 30} The State argues that the jury could reasonably infer
that Lieutenant Whitt had the required familiarity with Defendant’s
voice. The State points to the fact that Lieutenant Whitt was
assigned to the jail division of the Sheriff’s Office, and that
he had testified that jail personnel attempted to interview all
the inmates of the pod in which Defendant was housed about the
broken window. We do not agree that such evidence satisfies
Evid.R. 901 or 602. It would be speculative for the jury to find
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from that evidence the familiarity with Defendant’s voice that
Evid.R. 901(B)(5) requires.
{¶ 31} Weissenberger writes, concerning Evid.R. 901:
“Conceptually, the function of authentication or identification
is to establish, by way of preliminary evidence, a connection
between the evidence offered and the relevant facts of the case.”
Id, at §901.1. The example in Evid.R. 901(B)(5) of authentication
of a recording to identify a voice heard on the recording satisfies
that function. However, Evid.R. 901(B) states that the examples
therein are “[b]y way of illustration only, and not by way of
limitation.” Our plain error analysis requires an inquiry whether
other evidence was sufficient to demonstrate that the male voice
heard on the recordings played for the jury was Defendant’s voice.
{¶ 32} Defendant was an inmate of the Clark County Jail on
February 23, 2009, when the calls heard on State’s Exhibit 1 were
made and recorded. The calls were made from a telephone in a day
room of the jail to which Defendant had access. The calls were
collect calls made to Shianne Rice. Rice testified that Defendant
made calls to her from the jail during that time. Rice further
testified that in at least one of the calls Defendant made to her,
Defendant told her of a window in the jail that was broken. On
this record, and with respect to that particular evidence, the
jury could reasonably infer that the male voice heard on the
10
recordings was Defendant Rios’s voice. Therefore, we find that
the outcome of the trial, Defendant’s conviction based on the guilty
verdict the jury returned, would not clearly have been different
but for the error in admitting Lieutenant Whitt’s voice
identification evidence. Plain error is therefore not
demonstrated. State v. Long.
{¶ 33} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 34} “THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 35} A weight of the evidence argument challenges the
believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or
persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App.
No. 15563. The proper test to apply to that inquiry is the one
set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 36} “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 lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and
a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52.
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{¶ 37} The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v.
Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 38} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder’s
determinations of credibility. The decision whether, and to what
extent, to credit the testimony of particular witnesses is within
the peculiar competence of the factfinder, who has seen and heard
the witness.”
{¶ 39} This court will not substitute its judgment for that
of the trier of facts on the issue of witness credibility unless
it is patently apparent that the trier of facts lost its way in
arriving at its verdict. State v. Bradley (Oct. 24, 1997),
Champaign App. No. 97-CA-03.
{¶ 40} Defendant argues that his conviction for vandalism is
against the manifest weight of the evidence because Lieutenant
Whitt could not credibly identify Defendant’s voice on the recorded
jail phone calls, inasmuch as he did not testify how he knew or
was able to recognize Defendant’s voice. As we discussed in
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overruling Defendant’s first assignment of error, on the particular
facts in this case, the jury could reasonably infer from evidence
other than Lieutenant Whitt’s voice identification testimony that
the male voice heard on the recorded phone calls made from the
jail that were played for the jury was Defendant’s voice. Any
error in admitting Lieutenant Whitt’s opinion was harmless in
relation to Defendant’s manifest weight claim.
{¶ 41} Defendant also claims that his conviction is against
the manifest weight of the evidence because the State failed to
put on any evidence to prove chain of custody of the recorded jail
phone calls. In State v. Hooper, Montgomery App. No. 22883,
2010-Ohio-4041, at ¶35, we observed:
{¶ 42} “The State has the burden of establishing the chain of
custody of a specific piece of evidence, but the State's burden
is not absolute; ‘[t]he state need only establish that it is
reasonably certain that substitution, alteration or tampering did
not occur.’ State v. Barzacchini (1994), 96 Ohio App.3d 440,
457–458, 645 N.E.2d 137; State v. Blevins (1987), 36 Ohio App.3d
147, 150, 521 N.E.2d 1105. While authentication of evidence is
a condition precedent to its admission, the condition is satisfied
when the evidence is ‘sufficient to support a finding that the
matter in question is what its proponent claims.’ Evid.R. 901(A);
State v. Hunter, 169 Ohio App.3d 65, 861 N.E.2d 898, 2006–Ohio
13
5113, at ¶ 16.”
{¶ 43} Ann Woodruff, an employee of the Clark County Information
Services Department, testified at trial about the systems and
procedures in place for recording phone calls made from the jail
by inmates, and how she retrieved the recorded jail phone calls
made from a particular phone in the jail between February 13-17,
2009, and gave them to Lieutenant Whitt. Furthermore, Lieutenant
Whitt testified regarding the request he made of Woodruff to
retrieve certain recorded jail phone calls in this case, and how
he personally made a copy of the recorded jail phone calls he
received from Woodruff and did not alter those recordings in any
way. On the evidence presented in this case, it is reasonably
certain that no alteration or tampering with the recorded jail
phone calls occurred.
{¶ 44} The trier of facts in this case, the jury, did not lose
its way simply because it chose to believe the State’s witnesses,
which it had a right to do. DeHass. The credibility of the
witnesses and the weight to be given to their testimony were matters
for the trier of facts to decide. Id.{¶ 45} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
of facts lost its way in choosing to believe the State’s witnesses,
or that a manifest miscarriage of justice has occurred.
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Defendant’s conviction is not against the manifest weight of the
evidence.
{¶ 46} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 47} “THE TRIAL COURT ERRED WHEN IT FAILED TO CREDIT APPELLANT
WITH ANY JAIL TIME CREDIT IN THE VANDALISM CASE AT SENTENCING GIVEN
THAT APPELLANT HAD NOT EVEN BEEN TRIED, CONVICTED OR SENTENCED
IN THE OTHER PENDING CAPITAL CASE, AND THUS, VIOLATED R.C. 2967.191
AND THE EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO
THE U.S. CONSTITUTION AND ARTICLE I, SECTION TWO OF THE OHIO
CONSTITUTION.”
{¶ 48} Defendant argues that the trial court erred by failing
to award him jail time credit for the 414 days he spent in jail
awaiting trial on this vandalism charge.
{¶ 49} In State v. Coyle, Montgomery App. No. 23450,
2010-Ohio-2130, at ¶5-7, this court stated:
{¶ 50} “‘[W]here, for whatever reason, a defendant remains in
jail prior to his trial, he must be given credit on the statutorily
fixed sentence ultimately imposed for all periods of actual
confinement.’ White v. Gilligan (S.D.Ohio 1972), 351 F.Supp. 1012,
1014. The requirement enforces the Fourteenth Amendment right to
equal protection of the law. Workman v. Cardwell (N.D.Ohio 1972),
31 Ohio Mis. 99, 31 Ohio Misc. 99, 338 F.Supp. 893.
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{¶ 51} “R.C. 2967.191 implements the equal protection right
by imposing on the department of rehabilitation and correction
the specific responsibility to ‘reduce the stated prison term of
a prisoner ... by the total number of days that the prisoner was
confined for any reason arising out of the offense for which the
prisoner was convicted and sentenced, including confinement in
lieu of bail while awaiting trial [,] ... and confinement while
awaiting transportation to the place where the prisoner is to serve
the prisoner's term.’
{¶ 52} “‘Although the [department of rehabilitation and
correction] has a mandatory duty pursuant to R.C. 2967.191 to credit
an inmate with the jail time already served, it is the trial court
that makes the factual determination as to the number of days of
confinement that a defendant is entitled to have credited toward
his sentence.’ State ex rel. Rankin v. Ohio Adult Parole Authority,
98 Ohio St.3d 476, 786 N.E.2d 1286, 2003-Ohio-2061, at ¶ 7.
Furthermore, any error in the determination the court makes ‘may
be raised by way of a direct appeal of his criminal case.’ Id.,
at ¶ 10, 786 N.E.2d 1286, citing State ex rel. Jones v. O'Connor
(1999), 84 Ohio St.3d 426, 704 N.E.2d 1223.”
{¶ 53} Prisoners are not entitled to jail time credit against
a sentence of incarceration for any period of incarceration that
arises from facts separate and apart from those upon which their
16
sentence is based. State v. Logan (1991), 71 Ohio App.3d 292;
State v. Redman, Ross App. No. 00CA2556, 2001-Ohio-2679; State
v. Klein, Hamilton App. No. C-040176, C-040224, 2005-Ohio-1761.
{¶ 54} Defendant was charged with the offense of vandalism by
indictment filed on March 9, 2009 in Case No. 09CR0204. An arrest
warrant was issued on that indictment and served on Defendant on
March 10, 2009. At that time, Defendant was being held in jail
without bond on unrelated capital murder charges in Case No.
08-CR-523. Throughout the pendency of this vandalism case,
Defendant continued to be held in jail on both the unrelated capital
murder charges in Case No. 08-CR-523, and also on the $2,500 cash
or surety bond in the vandalism case that Defendant did not post.
{¶ 55} At the sentencing hearing on April 26, 2010, the trial
court indicated that Defendant would receive credit for any time
he is entitled to. The court granted the parties until April 30,
2010, to submit memoranda on the amount of jail time credit
Defendant should receive. On April 27, 2010, Defendant filed a
memo requesting 414 days of jail time credit for the time Defendant
spent in jail awaiting trial on this vandalism charge, from
indictment to date of conviction. In its judgment entry of
conviction, the trial court awarded Defendant jail time credit
only from April 26, 2010, the date of his conviction, until his
conveyance to the penitentiary. The trial court did not give
17
Defendant any credit for the time he spent in jail prior to trial
on this vandalism charge.
{¶ 56} In arguing that the trial court erred in failing to award
him 414 days of jail time credit for the time he spent in jail
awaiting trial on this vandalism charge, Defendant relies upon
State v. Klein. That reliance is misplaced, because Klein is
distinguishable. In Klein, the defendant was held in jail prior
to trial on both a receiving stolen property charge, for which
he did not post bond, and on a parole holder based solely upon
the same receiving stolen property charge. The trial court
refused to give Defendant credit against the sentence imposed on
the receiving stolen property conviction because, except for one
day, Defendant was at that same time also being held in jail on
the parole holder. Accordingly, the trial court credited
Defendant for one day of pretrial confinement, that being the
amount of time that he was held only on the receiving stolen property
charge.
{¶ 57} The court of appeals reversed the trial court’s decision
to not give the defendant credit for time served when it imposed
the sentence for receiving stolen property. The court of appeals
concluded that the trial court’s finding was speculative.
Defendant had not yet been convicted and sentenced for the parole
violation at the time the trial court sentenced him for the
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receiving stolen property conviction, and it could not be known
at that time whether Defendant would be convicted and sentenced
for the parole violation. The court found the proper approach
was to credit the time served to the crime for which Defendant
was convicted. Defendant would not then get credit for the same
time against the parole violation, so as to avoid a “double credit.”
{¶ 58} Unlike in Klein, the other matter upon which Defendant
was held in jail at the same time he was held on the vandalism
charge, the capital murder charges in Case No. 08-CR-523, do not
arise from the same facts that give rise to the vandalism charge.
They are separate, unrelated matters. Even had the vandalism
charge been dismissed, Defendant would continue to be held in jail
on the capital murder charges. Therefore, because the time
Defendant spent in jail awaiting trial on the capital murder charges
in Case No. 08-CR-523 overlaps the time he spent in jail prior
to trial on this vandalism charge, and does not arise from the
same facts on which his sentence for vandalism is based, Defendant
was not entitled to jail time credit against the sentence imposed
on the vandalism conviction for the time he spent in jail awaiting
trial.
{¶ 59} Defendant’s third assignment of error is overruled.
The judgment of the trial court will be affirmed.
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FROELICH, J. And HALL, J., concur.
Copies mailed to:
Andrew R. Picek, Esq.
Keith O’Korn, Esq.
Hon. Douglas M. Rastatter