State v. Gilliam

948 N.E.2d 482, 192 Ohio App. 3d 145
CourtOhio Court of Appeals
DecidedJanuary 7, 2011
DocketNo. 09CA0075
StatusPublished
Cited by2 cases

This text of 948 N.E.2d 482 (State v. Gilliam) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gilliam, 948 N.E.2d 482, 192 Ohio App. 3d 145 (Ohio Ct. App. 2011).

Opinion

Grady, Judge.

{¶ 1} On March 19, 2009, defendant-appellant, Gary Wayne Gilliam, purchased a quantity of powdered cocaine from a police informant. Gilliam was promptly arrested by officers who had set up the controlled buy. On July 22, 2009, following a jury trial, Gilliam was convicted of possession of cocaine in an amount equal to or exceeding 1,000 grams, R.C. 2925.11(A), which is a first degree felony for which a maximum prison term is mandated. R.C. 2925.11(C)(4)(f). Gilliam was sentenced pursuant to law to the mandatory prison term of ten years and additional financial sanctions. He now appeals from his conviction.

FIRST ASSIGNMENT OF ERROR

{¶ 2} “The trial court erred in admitting the videotape recording of a meeting allegedly between the informant and appellant when the informant had the sole knowledge of the recording and was not called to authenticate the recording and provide proper foundation as required by Ohio Rules of Evidence 901(A) in violation of the Due Process Clause of the United States Constitution and Article I, Section 10 of the Ohio Constitution.”

{¶ 3} The state offered in evidence a video recording that purportedly depicted a meeting between Gilliam and the police informant on March 13, 2009, which allegedly concerned Gilliam’s subsequent purchase of drugs from the informant on March 19, 2009. The video was offered in the state’s case in rebuttal, following Gilliam’s claim of entrapment. Defendant objected that the video was not admissible absent the testimony of the informant that the video accurately portrays what it shows.

{¶ 4} Motion pictures are admissible in evidence when their relevancy, authenticity, and accuracy of portrayal are established by the laying of an adequate foundation. DeTunno v. Shull (1956), 75 Ohio Law Abs. 602, 144 N.E.2d 669, 672. Other forms of video recording are no different.

{¶ 5} The foundational requirements for admissibility of evidence are set out in Evid.R. 901, which states the requirements for authentication or identification of evidence in the alternative. Evid.R. 901(B) states:

{¶ 6} “Illustrations.

{¶ 7} “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:

{¶ 8} “(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

{¶ 9} “ * * *

[149]*149{¶ 10} “(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.”

{¶ 11} Gilliam argues that the trial court erred in admitting the video recording in evidence because the state failed to offer it through the testimony of the informant that the video recording was an accurate depiction of his meeting with Gilliam. That contention relies on Evid.R. 901(B)(1).

{¶ 12} The state argues that a proper foundation was nevertheless laid through the testimony of two law-enforcement officers who stated that they are familiar with defendant’s voice and that his voice is heard on the video recording. One of the two officers further testified to the same effect concerning the informant’s voice. That contention relies on Evid.R. 901(B)(5). The trial court admitted the video in evidence on that basis.

{¶ 13} Professor Weissenberger writes that when a recorded voice is sought to be identified, “the proponent should offer foundational testimony to the effect that the recording is an accurate reproduction of the voice in question or that the recording equipment is of such quality as to assure accurate reproduction.” Weissenberger’s Ohio Evidence Treatise (2009 Ed.), Section 901.71.

{¶ 14} The state offered the video through the testimony of Detective Andrew Reynolds of the Clark County Sheriffs Department and Charlie Stiegelmeyer, who is employed by the Attorney General of Ohio as a narcotics investigator. Each testified that he is familiar with defendant’s voice and that defendant’s voice is heard on the video recording. Detective Reynolds likewise identified the police informant’s voice.

{¶ 15} Detective Reynolds further testified that the video recording was made using a camera disguised as a pen that he provided to the informant and that the informant carried in his shirt pocket. However, neither Detective Reynolds nor any other witness testified that the device produces an accurate video and/or audio recording. It appears from the testimony that was offered that the recording device failed to produce a video record of part of the meeting when the informant wore a jacket that covered the “pen” in his pocket. The evidence of voices alone that the state offered concerned the audio portion of the recording produced during those times.

{¶ 16} Defendant objected that the video was inadmissible absent the testimony of the informant shown in it. The trial court admitted the video pursuant to Evid.R. 901(B)(5) because the two officers could identify the voices heard on it. Defendant did not object that the video was not admissible pursuant to Evid.R. 901(B)(5) because the state failed to offer foundational evidence of its [150]*150accuracy. Therefore, any error in admitting the evidence for that reason is forfeited. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306. Criminal plain error is not shown. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804.

{¶ 17} The first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 18} “The trial court erred in finding defendant guilty against the manifest weight of the evidence.”

{¶ 19} Defendant argues that his conviction for possession of powdered cocaine in an amount equal to or exceeding 1,000 grams is against the manifest weight of the evidence because the evidence the state offered was not conclusive of the weight of the cocaine he purchased.

{¶ 20} Unlike a sufficiency-of-the-evidence claim, which involves an adequacy test, but which defendant does not make, “[wjeight 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.’ * * * ‘Weight is not a question of mathematics, but depends on its effect in inducing belief.’ (Emphasis added.)” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting Black’s Law Dictionary (6th Ed.1990) 1594. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id., citing Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652.

{¶ 21} R.C. 2925.11(A) states: “No person shall knowingly obtain, possess, or use a controlled substance.” The degrees of the offense for a violation of R.C. 2925.11(A) when the controlled substance is cocaine are set out in R.C. 2925.11(C)(4).

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Related

State v. Gilliam
2013 Ohio 3648 (Ohio Court of Appeals, 2013)

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Bluebook (online)
948 N.E.2d 482, 192 Ohio App. 3d 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gilliam-ohioctapp-2011.