[Cite as State v. Hemmelgarn, 2019-Ohio-2034.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-7 : v. : Trial Court Case No. 2018-CR-113 : ERIC J. HEMMELGARN : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :
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OPINION
Rendered on the 24th day of May, 2019.
DEBORAH S. QUIGLEY, Atty. Reg. No. 0055455, Darke County Prosecutor’s Office, Appellate Division, 504 S. Broadway Street, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee
PAUL E. WAGNER, Atty. Reg. No. 0067647, 507 S. Broadway Street, Greenville, Ohio 45331 Attorney for Defendant-Appellant
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HALL, J. -2-
{¶ 1} Eric J. Hemmelgarn appeals from his conviction following a bench trial on
charges of gross sexual imposition and disseminating matter harmful to juveniles.
{¶ 2} Hemmelgarn advances six assignments of error. The first two challenge the
legal sufficiency and manifest weight of the evidence to sustain his convictions. Third, he
contends the trial court improperly admitted into evidence his responses to hypothetical
scenarios relating to drug use. Fourth, he claims the trial court was prejudiced by its
admission of irrelevant evidence. Fifth, he asserts that a police officer’s testimony about
the recovery and analysis of cell-phone data improperly was admitted as lay testimony.
Sixth, he alleges that cumulative error deprived him of a fair trial.
{¶ 3} The record reflects that Hemmelgarn was charged with the offenses set forth
above for reaching inside the pants of his 12-year-old daughter “Susan” and rubbing her
vagina while showing her a pornographic video on his cell phone. 1 At trial, Susan
engaged in the following discussion with the prosecutor about the incident, which
occurred while she was home with her father and two younger siblings, who were asleep
or in bed:
Q. Okay. [Susan], back in the end of August, 2017 until the early part
of September, 2017, was there a time when something happened with your
dad that made you very upset?
A. Yes.
Q. And what happened?
A. I was sitting on the couch and—
Q. This is in your living room at your house?
1 We will use the fictitious name “Susan” to identify the victim and preserve her privacy. -3-
Q. About what time?
A. It would have been around 9:00, 10:00.
Q. Okay. Are we talking morning or night?
A. Night.
***
Q. All right. You’re sitting on the couch. Is your dad home?
Q. And where is he?
A. He was sitting on the couch.
Q. And what was your dad doing?
A. He was trying to force his hands down my pants while showing
me a video.
Q. Okay. Where was the video?
A. On his phone.
Q. Okay. Tell me about the video.
A. It was about a father/daughter and she was in the bathroom
wearing a towel and he was going to—looks like he was going to bed and
they ended up having sex.
Q. Okay. Was there a title there that you saw?
Q. And what was the title?
A. “Dad F’s little girl.” -4-
Q. Okay. You said that she’s in a towel. Can you tell me what did you
see?
A. She was in a towel and the father ended up taking the towel off
and she was naked, and he stuck his thing inside of her.
Q. Okay. When you say he stuck his thing inside of her, what do you
mean?
A. I don’t know how to put it. She was bent over the toilet and he was
like behind her and that’s how he stuck it in.
Q. Okay. How long are you watching this video?
A. I don’t remember.
Q. And what is your dad doing?
A. Trying to get his hand down my pants.
Q. Tell me what are you wearing?
A. I was wearing sweat pants, like a grayish colored sweat pants with
gold rings around the ankles, and that’s all I can remember. I don’t
remember the shirt I was wearing.
Q. Did you have underwear on?
Q. Okay. And you said your dad was trying to put his hand down your
pants, your pants or your underwear?
A. My underwear.
Q. And what part is he touching?
A. The front part. -5-
Q. Okay. What do you mean by “front part”?
A. My vagina.
Q. And what is he doing with his hand?
A. He’s trying to force it down my pants and there was a moment of
weakness, like, and he ended up getting able to put it down and he was,
like, rubbing.
Q. Okay. He was rubbing?
Q. What was he rubbing?
(Trial Tr. at 14-18.)
{¶ 4} Susan testified that the incident stopped when she got up to help a younger
sibling who had gotten out of bed. After helping the child, Susan left the house and ran
next door, where she told some of her friends what had happened. (Id. at 18-19.) While
she was there, Hemmelgarn came over. He stated that she was “crazy” and “just mad” at
him. Susan returned home with Hemmelgarn and went into her bedroom and locked the
door. (Id. at 19.)
{¶ 5} On cross examination, Susan testified that the incident with Hemmelgarn
occurred toward the end of August before school started for the year. (Id. at 22, 24-25.)
On re-direct examination, she testified that about one week passed after the incident
before she talked to police, which occurred on September 12, 2017. (Id. at 27, 45.) She
agreed that this meant the incident possibly occurred in September. (Id. at 27.) On re-
cross examination, however, Susan testified again that the incident occurred before -6-
school started for the year. (Id. at 28.) Then on further direct examination, she stated that
she was “not sure of the date” and that the incident could have occurred about one week
before she talked to the police. (Id.) On further re-cross examination, Susan remembered
that it happened before school started.2 (Id. at 29.)
{¶ 6} The next witness was Greenville police officer Jason Marion. He testified that
he spoke with Susan about the incident on September 12, 2017. He then interviewed
Hemmelgarn at the police department on September 13, 2017 and again on September
14, 2017. (Id. at 45-46.) After the first interview, Marion and another officer followed
Hemmelgarn back to his house and obtained his cell phone. With Hemmelgarn’s consent,
Marion copied the phone’s hard drive. (Id. at 46-47.) He then extracted data from the
phone and generated a report dealing primarily with the phone’s “Web and browser
history,” most of which had been deleted on September 13, 2017 before police obtained
the phone. (Id. at 48, 51-53.)
{¶ 7} During both of Hemmelgarn’s interviews, he denied Susan’s allegations. (Id.
at 54.) In the second interview, however, he “started to indicate that perhaps he was
watching pornography on his phone and the children walked by and accidentally saw it.”
He also “started to get into the fact that he was addicted to crack cocaine and that
because of his addiction to crack cocaine that that caused him to watch pornography and
he kind of led into that when he smoked crack cocaine sometimes he didn’t remember
doing specific things like looking at pornography.” (Id. at 54-55.) At one point, Marion
asked Hemmelgarn “if it was possible that if he was so high on crack cocaine that he
2 The significance of the timing is that police found a pornographic video on Hemmelgarn’s cell phone that had been accessed in early September 2017. -7-
could have touched [Susan] and not remembered and he said it could have been a
possibility.” (Id. at 56.)
{¶ 8} Following this portion of Marion’s testimony, the State played excerpts of
Hemmelgarn’s second interview. The State explained that it was playing the excerpts
rather than another recording of the whole interview to keep out portions that contained
inadmissible hearsay. (Id. at 57-58.) Defense counsel’s only objection was that the State
shortened version “took out much more than what was just inadmissible.”(Id. at 58.) The
trial court overruled the objection, noting that it would allow Hemmelgarn to use the
recording of the entire interview and play any additional portions that he believed were
necessary. (Id. at 58-61.)
{¶ 9} After the interview excerpts were played, Marion testified about a report on
the cell phone data extraction. When asked whether there was “anything in the report
within the time frame between August and September 12th with regard to fathers and
daughters,” Marion responded affirmatively. (Id. at 64.) He added that “[t]here were
multiple dates on inferences like that.” (Id.)
{¶ 10} On cross examination, Marion acknowledged that the data-extraction report
showed no internet searches on Hemmelgarn’s phone during the month of August 2017.
(Id. at 69.) He noted that a video could have been saved on the phone without a web
search, but he did not find any videos of saved “child porn.” (Id. at 70.) Marion then
acknowledged that when he spoke with Susan, she claimed Hemmelgarn had showed
her “child porn.” (Id. at 71.) In particular, Susan told Marion “that the child that she saw in
the video was about her age.” (Id. at 72.) When Marion searched Hemmelgarn’s cell
phone, he found browser searches from September 2017 that were “close” to what Susan -8-
had described. (Id.) On re-direct examination, Marion testified about Hemmelgarn
admitting crack cocaine took over him. Marion also agreed that when Hemmelgarn was
asked about touching his daughter, he denied having any recollection of doing so. (Id. at
84.) Finally, Marion testified that he became involved in the case after Hemmelgarn’s
neighbor contacted the police department on September 12, 2017. (Id. at 85.) According
to Marion, the neighbor reported hearing allegations involving Susan and Hemmelgarn
for about three days before she contacted the police. (Id. at 86, 88.) Following Marion’s
testimony, the State rested.
{¶ 11} Kent Warner then testified as a defense witness. Warner identified himself
as a relative of Hemmelgarn and Susan. He explained that Hemmelgarn’s “mother is [his]
wife’s step sister.” (Id. at 93.) He considered Hemmelgarn his nephew and Susan his
great niece. (Id.) At the time of trial, Susan was living with Warner and his wife as a result
of Darke County Children Services placing the child there due to the allegations against
Hemmelgarn. (Id. at 93-95.) Warner testified that about a week before police became
involved in the case, he asked Susan whether Hemmelgarn had been doing “bad things.”
According to Warner, Susan told him she knew what he was talking about and denied
that anything had happened. (Id. at 99-100.) After the police became involved, Susan
talked to Warner again and allegedly told him, “Daddy did do it.” (Id. at 102.) Warner
testified, however, that the only specific conduct she acknowledged was Hemmelgarn
putting his hand down the back of her pants and squeezing her “butt.” (Id. at 102.) Warner
proceeded to testify that “at times” it is difficult to tell when Susan is telling the truth. (Id.
at 103.) On cross examination, however, Warner stated that lying was not a “consistent
problem” for Susan. (Id. at 109.) Following Warner’s testimony, defense counsel rested. -9-
{¶ 12} The trial court ruled from the bench the following day and found
Hemmelgarn guilty of gross sexual imposition, a felony of the third degree, and
disseminating matter harmful to juveniles, a felony of the fourth degree. (Sentencing Tr.
at 3.) For the gross sexual imposition, the trial court imposed a 12-month prison sentence
with five years of mandatory post-release control and sex-offender registration
requirements. It imposed five years of community control for disseminating matter harmful
to juveniles. (Id. at 10-12.) The trial court memorialized the conviction and sentence in an
August 8, 2018 judgment entry. (Doc. #18.) This appeal followed.
{¶ 13} In his first assignment of error, Hemmelgarn challenges the legal sufficiency
of the State’s evidence to sustain his convictions. In support, he cites Warner’s testimony
about Susan denying that anything happened and then claiming he squeezed her butt.
He also contends Susan falsely claimed he had her watch “child porn” when no legally-
defined child porn was found on his phone. He further alleges that inconsistent testimony
was presented as to precisely when the offenses occurred and whether three days or one
week elapsed between the offenses and police being contacted. Hemmelgarn contends
the only link to a pornographic video on his cell phone was from September 8, 2017, and
police were notified on September 12, 2017, which was not one week later. He argues
that this contradicted Susan’s testimony that one week elapsed between the incident and
police being notified. Hemmelgarn also argues that no one corroborated her allegations,
which he repeatedly denied. To the extent that he eventually “hedged” and agreed it was
possible the incident could have occurred without him remembering it if he was high on
crack cocaine, Hemmelgarn argues that this was a hypothetical situation, not an
admission. For all of the foregoing reasons, he contends the evidence was legally -10-
insufficient to sustain either of his convictions.
{¶ 14} When a defendant challenges the sufficiency of the evidence, he is arguing
that the State presented inadequate evidence on an element of the offense to sustain the
verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d
Dist.2000). “An appellate court’s function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. 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.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 15} With the foregoing standards in mind, we conclude that Hemmelgarn’s
convictions were supported by legally sufficient evidence. Susan’s testimony, alone, if
believed, was legally sufficient to sustain his convictions for gross sexual imposition and
disseminating matter harmful to juveniles. The portion of her testimony quoted above
establishes the essential elements of both offenses. Hemmelgarn’s various arguments
challenge Susan’s credibility and the believability of her trial testimony. But witness
credibility is not a proper matter for review when assessing legal sufficiency of the
evidence. State v. Sibole, 2d Dist. Clark No. 2017-CA-68, 2018-Ohio-3203, ¶ 23.
Accordingly, the first assignment of error is overruled.
{¶ 16} In his second assignment of error, Hemmelgarn asserts that his convictions
were against the manifest weight of the evidence. He advances a number of arguments
in support. He suggests that Susan had a motive to lie because she testified that she -11-
disliked him being gone for hours at a time without explanation or spending time with his
friends. Hemmelgarn theorizes that Susan may have wanted to live with her great aunt
and uncle rather than him and that she made up her allegations to get what she wanted.
He also cites Kent Warner’s testimony that it sometimes is hard to tell when Susan is
lying. Hemmelgarn reasons that the trial court could not be expected to determine
whether Susan’s testimony was truthful if Warner, a relative, had a hard time ascertaining
her veracity.
{¶ 17} Hemmelgarn also notes that the case began with a report from a neighbor
that he had raped Susan, which was not true. He suggests that Susan was the source of
this untruthful allegation and, therefore, that her trial testimony lacked credibility. As for
the pornographic video he allegedly showed Susan, Hemmelgarn contends the State
provided insufficient details to support a finding that he forced her to watch such a video.
He suggests that Susan may have watched a pornographic video herself or with friends,
or she may have lied about the entire incident. Hemmelgarn further argues that Susan
may have used his phone and found the video herself.
{¶ 18} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “clearly lost its way and created 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). A
judgment should be reversed as being against the manifest weight of the evidence “only
in the exceptional case in which the evidence weighs heavily against the conviction.” -12-
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 19} Here Hemmelgarn’s convictions were not against the weight of the
evidence. With regard to Susan’s credibility, veracity, and a possible motive to lie, these
matters were primarily for the trier of fact to resolve. Although we are entitled to assess
witness credibility in a manifest-weight review, we extend substantial deference to the
fact-finder’s determinations of credibility and which testimony to believe. State v.
Stanaford, 2d Dist. Montgomery No. 27940, 2019-Ohio-1377, ¶ 32. We are somewhat
less deferential when deciding which of multiple competing inferences suggested by the
evidence should be preferred. State v. Hawkins, 2d Dist. Montgomery No. 27019, 2018-
Ohio-867, ¶ 57.
{¶ 20} With regard to Susan’s credibility, the trial court reasonably could have
believed her testimony about Hemmelgarn rubbing her vagina and showing her a
pornographic video. Although Susan described the video as “child porn” (Trial Tr. at 70),
the trial court was not required to conclude that she was speaking in a legal sense. Rather,
the trial court reasonably concluded that she meant the video depicted what appeared to
be a father and his young-looking daughter. (Id. at 70-71.) The fact that no legally-defined
“child porn” was found on Hemmelgarn’s cell phone was a matter for the trial court to
assess in determining Susan’s credibility. Moreover, although the record contains
conflicting evidence about whether the offenses occurred three days or one week before
police were notified, Susan acknowledged that she was “not sure of the date.” (Id. at 28.)
On appeal, Hemmelgarn admits that a link to a pornographic video on his cell phone was
from September 8, 2017, and police were notified on September 12, 2017, which was
four days later. In our view, the timing issue was again a matter for the trial court to resolve -13-
when assessing witness credibility.
{¶ 21} As for Hemmelgarn’s argument about the case beginning with an inaccurate
report from a neighbor that he had raped Susan, no evidence established that Susan was
the source of that allegation. (Id. at 82.) Susan testified that, after Hemmelgarn touched
her and showed her the video, she ran next door and told several of her friends what had
happened. (Id. at 18.) It appears that the mother of one or more of these friends reported
the incident to police a few days later and, in so doing, may have gotten the specifics
wrong. (Id. at 83, 85.) Finally, with regard to the video, we simply disagree with
Hemmelgarn’s assertion that the State presented “insufficient details” to support a finding
that he forced Susan to watch it. At trial, Susan provided a fairly detailed description of
the video’s contents as well as the circumstances surrounding her viewing of it.
Hemmelgarn’s suggestion that she may have taken his phone and watched the video
herself, or that she may have seen such a video with friends, was a matter for the trial
court to consider when assessing her credibility.
{¶ 22} Based on our review, we do not find that the trial court clearly lost its way
and created a manifest miscarriage of justice when resolving conflicts in the evidence.
This is not an exceptional case in which the evidence weighed heavily against
Hemmelgarn’s convictions. His second assignment of error is overruled.
{¶ 23} In his third assignment of error, Hemmelgarn contends the trial court erred
in admitting into evidence his responses to hypothetical scenarios regarding drug use.
More specifically, he challenges the trial court’s admission of his recorded second
interview at the police department. He claims the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice. He asserts that the “heavily -14-
edited” excerpts played by the prosecutor showed police asking about his drug history,
the effects of his drug use, and whether he might have touched Susan without
remembering while under the influence of drugs. According to Hemmelgarn, the excerpts
played by the prosecutor omitted his “vigorous denials” and attempts by police to get him
to change his story. Hemmelgarn also contends the questions about his drug use and
memory loss were irrelevant because the State presented no evidence that he used or
possessed drugs on the day in question.
{¶ 24} Upon review, we find Hemmelgarn’s arguments to be unpersuasive. Before
the recording was played, Marion testified without objection about what Hemmelgarn said
during the second interview:
Again, he initially denied the allegations. He started to indicate that
perhaps he was watching pornography on his phone and the children
walked by and accidentally saw it. Then he started to get into the fact that
he was addicted to crack cocaine and that because of his addiction to crack
cocaine that that caused him to watch pornography and he kind of led into
that when he smoked crack cocaine sometimes he didn’t remember doing
specific things like looking at pornography. So we talked a lot of that.
(Trial Tr. at 54-55.)
{¶ 25} Marion then added the following regarding his second interview with
Hemmelgarn:
And then when I brought up the fact that he was—he had stated that
when—sometimes when he smokes crack cocaine he doesn’t remember
certain things, I asked him if it was possible that if he was so high on crack -15-
cocaine that he could have touched [Susan] and not remembered and he
said it could have been a possibility.
(Id. at 56.)
{¶ 26} After this portion of Marion’s testimony, the State attempted to play a
recording of the second interview. Defense counsel objected to playing the entire
interview on the basis that it included inadmissible hearsay. (Id. at 57.) The State agreed
that playing the entire recording would be improper. For that reason, it proposed playing
an edited version (State’s Exhibit 4) containing admissible portions of the interview. (Id.
at 58.) The trial court asked whether defense counsel objected to that approach. Defense
counsel responded that the State had omitted “much more than what was just
inadmissible,” thereby removing Hemmelgarn’s statements from their proper context. (Id.)
The trial court explained that it would allow the defense to introduce any additional
portions of the recorded interview deemed necessary to provide context. (Id. at 58-60.)
Based on that ruling, the trial court admitted the State’s excerpts of the interview (State’s
Exhibit 4) but did not allow the State to play the full interview (State’s Exhibit 3.) The trial
court then viewed the excerpts of the interview. (Id. at 62.) On cross examination, defense
counsel questioned Marion about the second interview but did not attempt to introduce
any additional parts of the interview from the full recording. (Id. at 76-81.)
{¶ 27} We see no error in the trial court’s handling of the interview issue. Defense
counsel’s only objection to the State playing the recording containing excerpts of the
interview was that it took Hemmelgarn’s statements out of context. In response to this
objection, the trial court authorized defense counsel to supplement the State’s evidence
with anything else from the full recording that counsel thought necessary. The trial court -16-
acted within its discretion in dealing with the issue this way. As for Hemmelgarn’s specific
appellate arguments about the danger of unfair prejudice and a lack of relevance, he does
not appear to have raised these issues below. In any event, the trial court reasonably
could have found that the discussion about Hemmelgarn’s drug use and memory loss
was relevant and that the probative value of this evidence was not substantially
outweighed by the danger of unfair prejudice for purposes of Evid.R. 403(A). Marion’s
testimony and Hemmelgarn’s statements during the interview supported an inference that
he may have acted under the influence of drugs at the time of the incident in question.
The third assignment of error is overruled.
{¶ 28} In his fourth assignment of error, Hemmelgarn contends the trial court, as
the trier of fact, was prejudiced by the admission of irrelevant evidence of his drug
addiction. His substantive argument is as follows:
Evidence of [Hemmelgarn’s] drug addiction in State’s Exhibit Four
was not relevant to making any fact of consequence to the determination of
the action more or less probable than it would be without the evidence
because the State presented no evidence that [Hemmelgarn] was high or
possessed any drugs on September 8, 2017. Because of this lack of
probative value, [Hemmelgarn’s] addiction and potential memory loss could
only be presented to prove [Hemmelgarn] allegedly acted in conformity with
his addiction. The admission of evidence of drug use and memory loss due
to drug [use] was highly prejudicial and presented [Hemmelgarn] in a highly
damaging light. Given the lack of evidence supporting the State’s argument
and the inflammatory nature of [Hemmelgarn’s] history of addiction, the -17-
prejudice caused by the admission of the evidence contributed to this
conviction.
(Appellant’s brief at 17-18.)
{¶ 29} Hemmelgarn’s argument lacks merit. As a threshold matter, he failed to
raise an Evid.R. 404(B) other-bad-acts objection to the admission of evidence about his
drug use. He never objected at all to Marion’s testimony, quoted above, about his drug
use, and his only objection to the interview recording was that it had been taken out of
context. In any event, the record supports an inference that Hemmelgarn may have acted
under the influence of drugs when touching Susan inappropriately and showing her a
pornographic video. While denying that he touched Susan, Hemmelgarn arguably
acknowledged as much when he admitted to Marion that “it was possible that if he was
so high on crack cocaine that he could have touched [Susan] and not remembered[.]”
(Trial Tr. at 56.) The fourth assignment of error is overruled.
{¶ 30} In his fifth assignment of error, Hemmelgarn contends the trial court erred
in admitting Marion’s testimony regarding “Cellebrite” software as lay-witness testimony.
In particular, he challenges Marion’s testimony about the extraction of data from his cell
phone using a Cellebrite program. Hemmelgarn argues that Marion’s testimony about
using the Cellebrite program to collect data from his cell phone required Marion to be
qualified as an expert witness, which was not done. Therefore, he argues that all
testimony regarding Cellebrite was inadmissible and, without it, that the remaining
evidence did not support his convictions.
{¶ 31} At trial, Marion started to testify about his training in the use of Cellebrite to
examine cell phones and collect data. Defense counsel objected on the grounds that -18-
Marion needed to be qualified as an expert in that area. (Trial Tr. at 31.) The State
responded that it was not presenting Marion as an expert witness. It argued that he could
testify about his use of the Celebrite program as a lay witness. (Id. at 32.) In support, it
cited two cases, State v. Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, and
State v. Shine, 2018-Ohio-1972, 113 N.E.3d 160 (8th Dist.).
{¶ 32} The trial court held Hemmelgarn’s objection in abeyance while it heard
testimony about Marion’s training with Cellebrite. (Id. at 34.) Marion proceeded to testify
that he underwent two weeks of online training culminating in a 90-minute examination,
which he passed. (Id. at 35.) As a result, he was a “Cellebrite Certified Logical Operator
and Cellebrite Certified Physical Analyst.” (Id. at 36.) Marion explained these
certifications: “Logical operator just means that I’m certified to actually take the evidence
and to extract the information from it. * * * The other side is the analyst side of it where
I’m actually certified to take the extraction and break it down and review it[.]” (Id.) Marion
then testified he and one other officer had “done a lot of phones” since obtaining Cellebrite
certification. (Id.) The process involved taking a phone and cloning the SIM card, copying
the hard drive, and enabling the Cellbrite program to extract available data. The types of
data typically extracted might include browser history as well as “call logs, texting logs,
texting content, chat messages, social media messages, photos, videos, [and]
calendars.” (Id. at 37-43.)
{¶ 33} After Marion explained his Cellbrite qualifications and experience, the trial
court overruled Hemmelgarn’s objection and allowed the officer to testify “as a lay witness
with regard to extracting and analyzing cell phone data.” (Id. at 43.) Marion then testified
about obtaining Hemmelgarn’s cell phone and using the Cellebrite program to extract -19-
data. (Id. at 46-47.) He identified State’s Exhibit 1 as “a copy of the extraction from the
hard drive itself.” (Id. at 47.) He identified State’s Exhibit 2 as a “report generated from
the digital extraction.” (Id. at 48.) According to Marion, the report identified the content
that was able to be extracted from the phone. (Id. at 51.) It also showed what content had
been deleted from the phone prior to its examination. (Id.) The remainder of the report
showed the phone’s web and browser history, most of which had been deleted on
September 13, 2017 before police obtained the phone. (Id. at 51-53.) Marion also testified
that “between August and September 12th” Hemmelgarn’s cell phone showed “multiple
dates on inferences” involving “fathers and daughters.” (Id. at 64-65.)
{¶ 34} After reviewing Marion’s testimony and pertinent case law, we see no error
in the trial court allowing him to give lay-witness testimony about his use of the Cellebrite
program. A lay witness may testify about opinions or inferences that are “(1) rationally
based on the perception of the witness and (2) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” Evid.R. 701. In the present
case, most of Marion’s testimony did not even involve opinions or inferences. He simply
testified, factually, about extracting data from Hemmelgarn’s phone using the Cellebrite
program and listing that data in a generated report. All witnesses may testify as to facts
within their personal knowledge. Evid.R. 602. To the extent that Marion did offer “opinion”
testimony, he essentially opined that Cellebrite copies data from a phone. He based this
“opinion” on knowledge he acquired through his own use of the program. Marion’s
testimony did not require a specialized understanding of the Cellebrite program, as the
idea that data can be extracted from a cell phone is familiar to most people. Finally, to the
extent that Marion arguably conducted any “analysis” of the data, he merely testified that -20-
a generated report showed content that had been extracted from the phone and content
that had been deleted prior to examination. Again, this factual testimony did not involve
any real opinions requiring specialized knowledge, training, or experience. Therefore, we
agree with the trial court that Marion did not need to be qualified as an expert to testify
about his use of the Cellebrite program in this case.
{¶ 35} Our conclusion is consistent with the two Eighth District cases cited by the
State. In both Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, and Shine,
2018-Ohio-1972, 113 N.E.3d 160, the trial courts qualified officers as experts in data
extraction using Cellebrite. On appeal in both cases, the Eighth District found no error
while also noting that the officers could have testified as lay witnesses because expert
testimony was unnecessary. Calhoun at ¶ 32; Shine at ¶ 98-99. Federal courts have
reached the same conclusion under the analogous Federal Rules of Evidence. Most
recently, the Fourth Circuit Court of Appeals addressed the issue as follows in United
States v. Chavez-Lopez, Case No. 18-4183, 2019 WL 1562352, at *2-3 (4th Cir. Apr. 11,
2019):
Chavez-Lopez first contends that Yerry improperly gave expert
opinion testimony. In Chavez-Lopez’s view, Yerry’s testimony about the
extraction of the cellphone data necessarily involved an opinion about the
accuracy of Cellebrite, which he says only an expert could offer. The district
court twice overruled an objection to this effect. We review the district
court’s decision admitting this testimony for abuse of discretion. United
States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
All witnesses may testify to facts within their personal knowledge. But -21-
for opinion testimony, the Federal Rules distinguish between reasoning
familiar in everyday life and reasoning that requires expertise. See United
States v. White, 492 F.3d 380, 401 (6th Cir. 2007). Experts may thus offer
opinions based on “scientific, technical, or other specialized knowledge.”
Fed. R. Evid. 702. Lay witnesses, in contrast, may only offer opinions that
are “rationally based on [their] perception,” helpful to the jury, and not based
on specialized knowledge. Fed. R. Evid. 701. So, a lay witness may testify
that a substance looks like blood but not that certain bruises indicate head
trauma. See Perkins, 470 F.3d at 155.
Under this standard, Yerry did not give expert testimony. First, Yerry
did not offer an opinion. His brief testimony concerned the actions he took
to extract the data—hooking the phones up to a computer, following a few
prompts, and saving data onto an external drive. Yerry’s role as a witness
is, therefore, best characterized as testifying about facts in his personal
knowledge.
Second, to the extent Yerry offered an opinion, it was lay testimony.
Chavez-Lopez contends that Yerry implicitly vouched for Cellebrite’s
accuracy in extracting data. But Yerry offered no assurances about how well
Cellebrite performed. At most, he offered the opinion that Cellebrite copies
data from a cellphone, which he derived from his personal experience using
the software. That testimony requires no more specialized knowledge than
other opinions we have considered lay testimony, such as police officers’
testimony that a substance they observed was methamphetamine, that a -22-
shorthand statement made to them carried a certain meaning, or that an
observed use of force was objectively reasonable. United States v. Hoston,
728 F. App’x 223, 224 (4th Cir. 2018); United States v. Min, 704 F.3d 314,
324–25 (4th Cir. 2013); Perkins, 470 F.3d at 156. Yerry’s testimony didn’t
require a technical understanding of Cellebrite, and he made no claims
about the program’s effectiveness or reliability. He only testified about
copying data from one drive to another, which is “the product of reasoning
processes familiar to the average person in everyday life.” United States v.
Baraloto, 535 F. App’x 263, 271 (4th Cir. 2013) (quoting United States v.
Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) ); see also In re D.H., No.
A140779, 2015 WL 514336, at *6 (Cal. Ct. App. Feb. 6, 2015) (holding that
an officer gave only lay testimony about the extraction of data using
Cellebrite because “[t]he idea that images may be downloaded from a cell
phone is familiar to the general population”).
For these same reasons, the Second Circuit has held that a police
officer gave lay testimony when he discussed the extraction of data using
Cellebrite. See United States v. Marsh, 568 F. App’x 15, 16-17 (2d Cir.
2014) (holding that an officer gave lay testimony because he “did not purport
to render an opinion based on the application of specialized knowledge to
a particular set of facts” when discussing the extraction of cellphone data
through Cellebrite). Other courts have come to the same conclusion. See
United States v. McLeod, 755 Fed.Appx. 670, 672-75 (9th Cir. 2019); United
States v. Seugasala, 702 F. App’x 572, 575 (9th Cir. 2017); D.H., 2015 WL -23-
514336, at *6. But see McLeod, 755 Fed.Appx. at 676-77 (Molloy, J.,
dissenting in part and concurring in part) (contending that a detective who
testified about data extraction using Cellebrite gave expert testimony
without qualification).
{¶ 36} We find the foregoing analysis equally applicable here. For the reasons set
forth above, we see no abuse of discretion in the trial court’s decision to allow Marion to
provide lay-witness testimony about his use of the Cellebrite program. The fifth
assignment of error is overruled.
{¶ 37} In his sixth assignment of error, Hemmelgarn argues that cumulative error
deprived him of his right to a fair trial. He asserts that the alleged errors addressed above,
even if individually harmless, constituted prejudicial error when aggregated.
{¶ 38} It is true that separately harmless errors can violate a defendant’s right to a
fair trial when the errors are aggregated. State v. Madrigal, 87 Ohio St.3d 378, 397, 721
N.E.2d 52 (2000). To find cumulative error, we first must find multiple errors committed at
trial. Id. at 398. We then must find a reasonable probability that the outcome below would
have been different but for the combination of separately harmless errors. State v.
Thomas, 2d Dist. Clark No. 2000-CA-43, 2001 WL 1103328, *9 (Sept. 21, 2001). Here,
however, we have not found multiple instances of separately harmless error. That being
so, we have nothing to aggregate. The sixth assignment of error is overruled.
{¶ 39} The judgment of the Darke County Common Pleas Court is affirmed.
FROELICH, J. and TUCKER, J., concur. -24-
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Deborah S. Quigley Paul E. Wagner Hon. Jonathan P. Hein