State v. Perkins

[Cite as State v. Perkins, 2011-Ohio-2705.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-10-36
v.
SHAYNA R. PERKINS,
nka SHAYNA R. GONZALES, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 09-CR-0280
Judgment Affirmed
Date of Decision: June 6, 2011
APPEARANCES:
Cindy Wolph for Appellant
Derek W. DeVine and Gregory A. Taposci for Appellee
Case No. 13-10-36
WILLAMOWSKI, J.
{¶1} Defendant-appellant Shayna R. Perkins aka Shayna R. Gonzales
(“Perkins”) brings this appeal from the judgment of the Court of Common Pleas of
Seneca County finding her guilty of complicity to aggravated trafficking in drugs
and sentencing her to a mandatory sentence of four years in prison. For the
reasons set forth below, the judgment is affirmed.
{¶2} On March 20, 2009, the Seneca County Drug Task Force –
METRICH Enforcement Unit (“Task Force”) conducted a controlled buy of 55
ecstasy pills through the use of a confidential informant (“CI”). The CI was
equipped with a recording device and the Task Force had set up video recording
equipment in the area. The buy was to take place between the CI and Peter
Haslinger (“Haslinger”). The cameras recorded Perkins driving a vehicle with
Haslinger in it. Then Perkins and Haslinger exited the vehicle and approached the
CI where they engaged in a conversation. The video then shows the three of them
walking to a shed where they disappeared from view. The sale of the ecstasy was
recorded only on audio tape. Perkins and Haslinger then returned to the vehicle
and left. The vehicle was subsequently stopped for following too closely to other
vehicles. Perkins consented to a search of the vehicle, but no contraband was
found during the search. Approximately two and a half months later, the CI was
killed by law enforcement personnel in a separate criminal confrontation. Prior to
-2-
Case No. 13-10-36
his death, the CI’s services had been terminated when it was discovered that he
was continuing to use drugs.
{¶3} On December 16, 2009, the Seneca County Grand Jury indicted
Perkins on one count of complicity to aggravated trafficking in drugs in violation
of R.C. 2923.03(A)(2) and R.C. 2925.03(A)(1)(C)(1)(d) with juvenile and
forfeiture specifications. The charge was a felony of the first degree. On May 27,
2010, the State filed a motion in limine to allow the introduction of the audio and
video evidence of the drug purchase. The trial court held a hearing on the motion
before a bench trial began on June 6, 2010. The trial court granted the motion.
The matter then proceeded to trial. At the conclusion of the trial, the trial court
took the matter under advisement. On June 15, 2010, the trial court announced in
open court its finding of guilt that Perkins was complicit in the aggravated
trafficking in drugs. The trial court also found that the offense was committed in
the vicinity of a juvenile and found that the vehicle was subject to forfeiture. On
August 18, 2010, a sentencing hearing was held. The trial court ordered Perkins to
serve four years in prison and ordered forfeiture of the vehicle. Perkins appeals
from this judgment and raises the following assignments of error.
First Assignment of Error
The trial court abused its discretion and denied [Perkins] her
fundamental right to a fair trial, and her Sixth Amendment
rights to confrontation of witnesses, by permitting the State to
-3-
Case No. 13-10-36
submit audio and video evidence obtained via use of a [CI] when
the [CI] was deceased and thus no longer available for [Perkins]
to confront at trial.
Second Assignment of Error
The trial court abused its discretion in finding that [Perkins] was
guilty of complicity beyond a reasonable doubt. Mere presence
or proximity to the alleged transaction, the “context” established
by the audio and video recordings, were not sufficient to prove
that [Perkins] made affirmative actions meeting the definition of
“aiding” or “abetting” the crime charged.
{¶4} In the first assignment of error, Perkins alleges that the trial court
erred by admitting the audio and video evidence of the drug purchase when the CI
was no longer available to testify at trial. The admission of evidence is within the
sound discretion of the trial court. State v. Ray, 189 Ohio App.3d 292, 2010-Ohio-
2348, 938 N.E.2d 378. However, “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to be confronted with the witnesses against him.” The Sixth
Amendment to the United States Constitution. The United States Supreme Court
has held that the Confrontation Clause bars admission of “testimonial statements
of a witness who did not appear at trial unless he was unavailable to testify, and
the defendant had had a prior opportunity for cross-examination.” Crawford v.
Washington (2004), 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177. When
a hearsay statement is testimonial in nature, the statement is inadmissible,
regardless of its reliability and regardless of the declarant’s unavailability, unless
-4-
Case No. 13-10-36
the defendant had a prior opportunity to cross-examine the declarant. Id. at 42-60.
See also Ray, supra, and State v. Nix, 1st Dist. No. C-030696, 2004-Ohio-5502,
¶73.
To determine whether a statement is “testimonial,” the court in
Crawford did not precisely define the term, but listed the
following examples: (1) ex parte in-court testimony or its
functional equivalent, such as affidavits and prior testimony that
the defendant was unable to cross-examine, or pretrial
statements that declarants would reasonably expect to be used in
a prosecution, (2) extra-judicial statements contained in formal
testimonial materials such as depositions, prior testimony, or
confessions, and (3) statements made under circumstances that
would lead an objective witness to believe that the statement
would be available for use at a later trial.
Ray, supra at ¶32. The meaning of testimonial statements was further considered
by the U.S. Supreme Court in Davis v. Washington (2006), 547 U.S. 813, 126
S.Ct. 2266, 165 L.Ed.2d 224.
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.
Id. at 822. Finally, the Ohio Supreme Court has set forth the following test.
For Confrontation Clause purposes, a testimonial statement
includes one made “under circumstances which would lead an
objective witness reasonably to believe that the statement would
be available for use at a later trial.” * * * In determining
-5-
Case No. 13-10-36
whether a statement is testimonial for Confrontation Clause
purposes, courts should focus on the expectation of the declarant
at the time of making the statement; the intent of a questioner is
relevant only if it could affect a reasonable declarant’s
expectations. This test conforms to Crawford and is supported
by both state and federal authority. This definition also
prevents trampling on other portions of hearsay law that
Crawford expressly states do not implicate the right to confront
witnesses.
State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶36, 855 N.E.2d 834(citations omitted).
{¶5} In this case, Perkins argues that the trial court erred in admitting the
video and audio tapes made of the drug buy because the CI was not available for
cross-examination. This court has previously addressed the question of whether
tapes of drug purchases are testimonial evidence in State v. Stewart, 3d Dist. No.
13-08-18, 2009-Ohio-3411. In Stewart, this court held that tape recordings made
of the actual drug transactions are not hearsay. Id. at ¶90. Instead, the tapes are
merely being used to establish the context of a defendant’s statements and not to
prove the truth of the matter asserted in the statements by the CI. Id. (citing State
v. Sloan, 8th Dist. No. 79832, 2002-Ohio-2669; United States v. Price (1986), 792
F.2d 994; and United States v. Lemonakis (1973), 485 F.2d 941). If the statements
are not testimonial in nature, then the Confrontation Clause is not implicated. The
video tape of Perkins approaching the site of the drug transaction and the audio
-6-
Case No. 13-10-36
tape of the drug transaction are thus not testimonial in nature and need not be
excluded.
{¶6} Perkins also raises an issue with the use of the tape of the debriefing
of the CI after the purchase is complete. The debriefing tape, unlike the prior
tapes occurred outside of the presence of Perkins and thus does not put her own
comments into context. Thus, it would be a hearsay statement that would
normally be excluded. However, in this case, the debriefing tape was played by
the defense when cross-examining the State’s witness. After the tape was played,
the State questioned the witness on re-direct concerning some statements made on
the tape introduced by Perkins. Pursuant to the doctrine of invited error, a party
may not take advantage of an error that he or she created. State v. Bey (1999), 85
Ohio St.3d 487, 709 N.E.2d 484. The doctrine of invited error precludes a
defendant from introducing evidence that would normally be hearsay during cross-
examination of a witness and then objecting to the use of the evidence on re-direct.
State v. McCombs, 9th Dist. No. 22837, 2006-Ohio-3289, ¶13. For the reasons set
forth above, the first assignment of error is overruled.
{¶7} In the second assignment of error, Perkins argues that the evidence
was not sufficient to support the finding of guilt.
When reviewing the sufficiency of the evidence to support a
criminal conviction, a court must examine the evidence admitted
at trial to determine whether such evidence, if believed, would
-7-
Case No. 13-10-36
convince the average juror of the defendant’s guilt beyond a
reasonable doubt. The relevant inquiry is whether, after
reviewing 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. Ready (2001), 143 Ohio App.3d 748, 759, 758 N.E.2d 1203.
{¶8} Here, Perkins was charged with one count of complicity to commit
aggravated trafficking of drugs with a specification that the sale occurred in the
vicinity of a juvenile. The State had to prove that Perkins knowingly aided or
abetted another in the sale of a controlled substance in the presence of a juvenile.
The video showed that Perkins drove Haslinger to the location with the child in the
rear seat of the vehicle. Perkins then walked with Haslinger around to the door of
the shed. The audio tape of the sale indicates that Perkins was present and
participated. Perkins described her experiences with the pills that the CI was
purchasing and how the pills should be ingested. After the sale, Perkins then
proceeded to leave the shed with Haslinger and the CI and drove Haslinger from
the scene after which the purchased pills were handed over by the CI to the Task
Force. Viewing this evidence in a light most favorable to the State, a rational trier
of fact could have concluded that Perkins knowingly aided and abetted Haslinger
in the sale of the drugs while in the vicinity of a juvenile. Thus, the evidence is
-8-
Case No. 13-10-36
sufficient to support the conviction and the second assignment of error is
overruled.
{¶9} Having found no error prejudicial to the defendant, the judgment of
the Court of Common Pleas of Seneca County is affirmed.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/jlr
-9-