State v. Clifford

2020 Ohio 5095

Opinion

[Cite as State v. Clifford, 2020-Ohio-5095.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J. -vs- Case No. 19 CAA 12 0068 LINDSEY CLIFFORD

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 19 CRI 02 0143

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 28, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL WILLIAM T. CRAMER Delaware County Prosecuting Attorney 470 Olde Worthington Road, Suite #200 Westerville, Ohio 43082 R. JOSEPH VARVEL Assistant Prosecuting Attorney Delaware County Prosecutor’s Office 145 North Union Street Delaware, Ohio 43015 Delaware County, Case No. 19 CAA 12 0068 2

Hoffman, P.J. {¶1} Appellant Lindsey Clifford appeals the judgment entered by the Delaware

County Common Pleas Court convicting her of engaging in a pattern of corrupt activity

(R.C. 2923.32(A)(1)), additional prohibited activities ( R.C. 1315.55(A)(1)), trafficking in

cocaine ( R.C. 2925.03(A)(1)), and receiving stolen property (R.C. 2913.51(A)), and

sentencing her to an aggregate prison term of four years. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} During the summer of 2018, Appellant and her boyfriend, Terrance Baker,

resided in an apartment in Columbus, Ohio. Also living in the apartment were Donald

Gorey, Shelley Hagerman, Antonio Estrada, and Leanna Jimenez. Jimenez moved into

the apartment at the request of Appellant and Baker, who asked her “to do what’s going

on at Home Depot” in order to make money. Tr. 422.

{¶3} Gorey, Hagerman, Estrada, and Jimenez would travel to Home Depot

stores in the Columbus metro area, including stores in Delaware County, in a maroon

Trailblazer owned by Appellant. Sometimes Appellant would drive, and once or twice she

went into Home Depot with the group. Baker did not travel with the group. The group

would enter the store and steal Milwaukee and DeWalt power tool sets. At one point in

time, the group went nearly every day to a Home Depot store in the area to steal power

tools.

{¶4} The group would return the tools to the apartment, where they would find

the value of the items on the internet. They would exchange the items with Appellant and

Baker for a percentage value of either cash or crack cocaine. Baker was in charge of the

cash, but either Appellant or Baker would distribute crack cocaine in exchange for the Delaware County, Case No. 19 CAA 12 0068 3

power tools. Appellant kept track of the transactions in a log book. Baker then sold the

stolen tools to a man the group knew only as “The Russian.”

{¶5} During this time, Home Depot’s shoplifting policy allowed only asset

protection specialists (APS) to apprehend suspects or enter theft reports in the company’s

internal database. Regular store employees were authorized to report incidents to the

store manager, but were instructed not to stop suspects or call law enforcement. APS

employees were to enter incidents into the database within 24 hours of an incident.

Absent corresponding violence, individual incidents are typically not reported to law

enforcement; thus, 85-90% of incidents are not reported.

{¶6} Jamie Mansfield and Sean Frame worked for Home Depot out of Michigan

as organized retail crime investigators. In July of 2018, they became aware of the group

of theft incidents conducted by the people living in Appellant’s apartment. The group was

known inside the company as the Black Wig Group, based on Jimenez sometimes

wearing a black wig into the store as a disguise.

{¶7} Mansfield and Frame traveled to Ohio in August, 2018, to further investigate

the series of thefts. On August 7, 2018, they conducted surveillance outside a Delaware

Home Depot store. They observed a vehicle later identified as Appellant’s vehicle arrive

at the store. Appellant was driving the vehicle. Gorey and Jimenez entered the store and

stole a Milwaukee portable tool power kit. Frame and Mansfield followed the group to

another store in Franklin County. All three members of the group entered the store.

Appellant came out of the store with a DeWalt tool kit. She drove the Trailblazer to the

front of the store. Gorey and Jimenez pushed a cart out of the store at a rapid pace, Delaware County, Case No. 19 CAA 12 0068 4

loaded items from the cart into the Trailblazer, and drove away. A cashier and some

customers came out of the store after seeing what was happening.

{¶8} Frame and Mansfield attempted to follow the Trailblazer, but lost it in traffic.

They eventually located the vehicle at the apartment complex where Baker and Appellant

lived. They set up surveillance from a nearby Taco Bell parking lot. From there, Frame

and Mansfield watched Gorey, Jimenez and Baker carrying DeWalt and Milwaukee power

tools from the apartment to the Trailblazer. Shortly thereafter, Baker drove away in the

Trailblazer. Frame and Mansfield attempted to follow, but lost the Trailblazer near a

highway on-ramp.

{¶9} Surveillance continued throughout the next week, during which time the

group continued to steal tools from Home Depot stores throughout the Columbus area.

On August 17, 2018, law enforcement obtained and executed a search warrant on the

apartment. Police seized a marijuana bong, a marijuana grinder, loose marijuana, crack

pipes, Chore Boy, a syringe, digital scales, and a Spider security device. From the

bedroom shared by Baker and Appellant, they seized notebooks containing UPC codes

or model numbers for tools. One of the notebooks had Appellant’s name written on it.

They also seized a Milwaukee charger and battery.

{¶10} Gorey, Jimenez and Appellant were arrested. Appellant called Baker from

the jail, and Baker told Appellant not to “mention anything about anything.” When she

called him again, Baker told Appellant he “was thinking about shitting his head” and was

worried police had his phone. Appellant told Baker to get out of town.

{¶11} Gorey and Jimenez agreed to cooperate with the police in exchange for

plea agreements. Appellant and Baker were charged by joint indictment with engaging Delaware County, Case No. 19 CAA 12 0068 5

in a pattern of corrupt activity (R.C. 2923.32(A)(1)), additional prohibited activities ( R.C.

1315.55(A)(1)), trafficking in cocaine ( R.C. 2925.03(A)(1)), trafficking in heroin (R.C.

2925.03(A)(1)) and receiving stolen property (R.C. 2913.51(A)). Appellant was

additionally charged with robbery (R.C. 2911.02(A)(3)). The case proceeded to joint

bench trial in the Delaware County Common Pleas Court. Following the presentation of

evidence, the court dismissed the charge of trafficking in heroin. The court found

Appellant not guilty of robbery. Appellant was convicted of the remaining charges. The

court found the trafficking in cocaine and receiving stolen property convictions merged

into the additional prohibited activities conviction, and the State elected to have Appellant

sentenced for additional prohibited activities. The court sentenced Appellant to four years

incarceration for engaging in a pattern of corrupt activity and to thirty months incarceration

for additional prohibited activities, to be served concurrently.

{¶12} It is from the November 21, 2019 judgment of conviction and sentence

Appellant prosecutes her appeal, assigning as error:

APPELLANT’S RIGHT OF CONFRONTATION WAS VIOLATED BY

THE ADMISSION OF HEARSAY STATEMENTS FROM PERSONS WHO

CLAIMED TO WITNESS SHOPLIFTING AND STORE THEFT REPORTS

DETAILING THE ALLEGED SHOPLIFTING.

{¶13} Appellant argues the admission of hearsay evidence violated her right to

confront the witnesses against her. She specifically argues testimony concerning the

observations of store employees, who did not testify, of thefts which took place inside the Delaware County, Case No. 19 CAA 12 0068 6

stores, both as relayed to Frame and Mansfield and as detailed in the Risk 360 reports

prepared by Home Depot employees, violated her right to confront the witnesses against

her.

{¶14} The Confrontation Clause of the Sixth Amendment states, “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him.” Out-of-court statements by a witness which are testimonial in nature are

barred, under the Confrontation Clause, unless the witness is unavailable and the

defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington,

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). If testimony qualifies as

nonhearsay, it does not implicate the Confrontation Clause. Id. at 59, citing Tennessee v.

Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); State v. Maxwell, 139

Ohio St. 3d 12, 9 N.E.3d 930, 2014-Ohio-1019, ¶131. Evid. R. 801(C) defines hearsay as

“a statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” We review trial court rulings

which implicate the Confrontation Clause de novo. State v. McKelton, 148 Ohio St.3d

261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97, citing State v. Hymore, 9 Ohio St.2d 122,

128, 224 N.E.2d 126 (1967), and United States v. Henderson, 626 F.3d 326, 333 (6th Cir.

2010).

{¶15} We note the surveillance videos and photographs admitted into evidence

are not hearsay, as there are no statements in either the videos or the photographs.

Because they are not hearsay, they do not implicate the Confrontation Clause. Crawford,

supra. However, the trial court also admitted testimony concerning employees’

observations of thefts inside the store, as well as the Risk 360 reports prepared by Home Delaware County, Case No. 19 CAA 12 0068 7

Depot employees which included SKU numbers, the value of the items stolen, and

descriptions of the thefts and the persons involved. The court found the testimony and

reports were admissible as present sense impressions and business records, and thus

exceptions to the hearsay rule pursuant to Evid. R. 803(1) and (6). The court found their

admission did not violate the Confrontation Clause, as they were non-testimonial in

nature.

{¶16} In Crawford, the United States Supreme Court suggested business records

are “by their nature” nontestimonial. Crawford at 56, 124 S.Ct. 1354. And subsequently

in State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 82, the

Supreme Court of Ohio held business records “are not ‘testimonial in nature because they

are prepared in the ordinary course of regularly conducted business and are “by their

nature” not prepared for litigation.’”

{¶17} However, in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct.

2527, 174 L.Ed.2d 314 (2009), the items of evidence at issue were reports by a company

which provided forensic analysis on seized substances to establish whether they were

illegal. The United States Supreme Court held despite the fact the records were kept in

the regular course of the company's business, the results of forensic drug testing were

testimonial—they were requested by the police and prepared for presentation at trial, and

were therefore subject to exclusion under the Confrontation Clause:

Respondent also misunderstands the relationship between the

business-and-official-records hearsay exceptions and the Confrontation

Clause. As we stated in Crawford: “Most of the hearsay exceptions covered Delaware County, Case No. 19 CAA 12 0068 8

statements that by their nature were not testimonial--for example, business

records or statements in furtherance of a conspiracy.” Business and public

records are generally admissible absent confrontation not because they

qualify under an exception to the hearsay rules, but because--having been

created for the administration of an entity's affairs and not for the purpose

of establishing or proving some fact at trial--they are not testimonial.

Whether or not they qualify as business or official records, the analysts'

statements here--prepared specifically for use at petitioner's trial--were

testimony against petitioner, and the analysts were subject to confrontation

under the Sixth Amendment.

{¶18} (Citations omitted.) Id. at 324, 129 S.Ct. 2527. Because the analyst who

created the records did not testify and was not subject to cross-examination, the forensic

analysis was inadmissible because its admission violated the Confrontation Clause. Id.

{¶19} Thereafter, in Bullcoming v. New Mexico, 564 U.S. 647, 663-65, 131 S.Ct.

2705, 180 L.Ed.2d 610 (2011), the Court held admission of the report of a defendant's

blood-alcohol level violated the defendant's right to confront the analyst who prepared the

report. The Court held the report was testimonial because it was a statement made in

order to prove a fact at defendant's criminal trial, and the testimony of a substitute analyst

who did not perform or observe the reported test did not satisfy the right to confrontation.

The lower court held the surrogate testimony was “adequate to satisfy the Confrontation

Clause in this case because [the actual analyst] ‘simply transcribed the resul[t] generated

by the gas chromatograph machine,’ presenting no interpretation and exercising no Delaware County, Case No. 19 CAA 12 0068 9

independent judgment,” and the defendant's “true accuser” was “the machine, while [the

testing analyst's] role was that of ‘mere scrivener.’ ” Id. at 659-60, 131 S.Ct. 2705. The

Supreme Court disagreed, noting the surrogate analyst's testimony “reported more than

a machine-generated number,” and the surrogate could not convey what the original

analyst knew and observed, or expose any lapses or inaccuracies by the original analyst.

Id. at 660, 131 S.Ct. 2705.

{¶20} In the instant case, we find the SKU numbers and the value of items taken,

included in the Risk 360 reports, were non-testimonial in nature. These figures served a

business purpose of Home Depot separate and apart from their potential use for

prosecution, as these figures were necessary for inventory and accounting records of the

stores impacted. However, we find the descriptions of the thefts included in the reports

and relayed orally to Frame and Mansfield were testimonial in nature. Although there

was evidence most of the Risk 360 reports generated by the company do not result in

prosecution, we find no business use for the descriptions of the perpetrators of theft

offenses in the store other than the potential use for apprehension and prosecution. We

find this particularly true in the instant case, where some of these observations were made

subsequent to Frame and Mansfield traveling from Michigan to Ohio for the express

purpose of investigating and apprehending the suspects involved in the Black Wig Group.

In fact, shortly after arriving in Ohio, Frame and Mansfield made contact with law

enforcement in Delaware County concerning their investigation. We find these

descriptions were testimonial in nature, and their admission therefore violated Appellant’s

right to confront the witnesses against her. Delaware County, Case No. 19 CAA 12 0068 10

{¶21} But even in cases where the defendant has established a violation of rights

under the Confrontation Clause, the Supreme Court of Ohio has consistently applied a

harmless-error analysis to determine whether the issue prejudiced the defendant. See

McKelton at ¶ 192, quoting Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23

L.Ed.2d 284, (1969).

{¶22} Crim.R. 52(A) defines harmless error in the context of criminal cases and

provides: “Any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.” Under the harmless-error standard of review, “the

government bears the burden of demonstrating that the error did not affect the substantial

rights of the defendant.” State v. Perry, 101 Ohio St.3d 118, 2004–Ohio–297, 802 N.E.2d

643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d

508 (1993). First, it must be determined whether the defendant was prejudiced by the

error, i.e., whether the error had an impact on the verdict. Second, it must be determined

whether the error was not harmless beyond a reasonable doubt. Lastly, once the

prejudicial evidence is excised, the remaining evidence is weighed to determine whether

it establishes the defendant's guilt beyond a reasonable doubt. State v. Harris, 142 Ohio

St.3d 211, 2015–Ohio–166, 28 N.E.3d 1256, ¶ 37.

{¶23} The instant case was a bench trial, in which the trial court explained at

length its reasoning for finding Appellant guilty. The trial court based its finding of guilt

almost exclusively on the testimony of Gorey and Jimenez. While Appellant argues their

testimony is not credible, the trial court took note of the potential credibility issues with

their testimony, and explained its reasons for finding the testimony in the instant case to

be credible. Tr. 1506-1511. Nothing in the trial court’s explanation of its reasons for Delaware County, Case No. 19 CAA 12 0068 11

finding Appellant guilty suggests the court relied on the Risk 360 reports or the

descriptions of the offenses and perpetrators provided by employees of Home Depot. Tr.

1511-1521. The trial court further had the opportunity to view the photos and videos, in

which both Gorey and Jimenez identified themselves, Appellant, and others in the group

stealing items from Home Depot. In addition, Frame and Mansfield, who both testified at

trial, testified they observed Appellant driving the group to Home Depot stores where

thefts were reported, and observed Appellant enter a store and walk out with a portable

power tool kit. We find admission of the Risk 360 reports and testimony concerning

observations of employees of the Home Depot stores to be harmless in the instant case.

{¶24} The assignment of error is overruled.

{¶25} The judgment of the Delaware County Common Pleas Court is affirmed.

By: Hoffman, P.J. Gwin, J. and Baldwin, J. concur