[Cite as State v. Pointer, 2011-Ohio-260.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-CA-0008 ARTENSON POINTER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 09-CR- 485
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 20, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. R. JOSHUA BROWN Prosecuting Attorney 32 Lutz Avenue 38 South Park Street Lexington, OH 44904 Mansfield, OH 44902 [Cite as State v. Pointer, 2011-Ohio-260.]
Gwin, P.J.
{¶1} Defendant Artenson Pointer appeals a judgment of the Court of Common
Pleas of Richland County, Ohio, which convicted and sentenced him after a jury found
him guilty of four counts of kidnapping with firearm specifications; two counts of
felonious assault, one of which carried a firearm specification; one count of having
weapons under a disability; one count of intimidation; and two counts of abduction with
firearm specifications. Three other counts of having weapons under a disability were
dismissed, and the court merged three of the kidnapping counts with the abduction
counts. Appellant assigns a single error to the trial court:
{¶2} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE JURY TO RECEIVE A TRANSCRIPT OF A CONTROLLED PHONE
CALL WHILE THAT CALL WAS BEING PLAYED FOR THE JURY.”
{¶3} On or about March 18, 2009, appellant and the victim were together in
Mansfield, Richland County, Ohio. Nolan Lovett joined them. Appellant became upset
with Lovett, and beat him up.
{¶4} Learning various rumors were spreading about appellant and Lovett, the
two men met together to determine the source of the rumors. Concluding the victim
was spreading lies about them, appellant, Lovett and Camille Brodnaxe agreed to
confront her. The appellant, the victim, and Lovett got into the victim’s car to take her to
Brodnaxe’s apartment. The victim did not wish to go, and eventually pulled the keys
from the ignition. Appellant produced a .22 handgun and Lovett exited the car.
Appellant fired a shot which did not strike the victim, but lodged in the gearbox of the
vehicle. Richland County, Case No. 2010-CA-0008 3
{¶5} Appellant, Lovett, and the victim then went to Brodnaxe’s apartment. At
some point during the confrontation, appellant struck the victim once in the face and
once in the ribs. The punch to the ribs caused the victim to have difficulty breathing. At
that point, Brodnaxe intervened. Appellant left Brodnaxe’s apartment with the victim
and eventually took her to the emergency room. There, the victim told the hospital
personnel she had been attacked by two transients.
{¶6} The following day, one of the victim’s co-workers noticed her injuries and
called the police. Detective Jeffrey Shook contacted the victim, and she told him
appellant had shot at her and punched her. Detective Shook had the victim make a
phone call to the appellant on her cell phone, while the detective listened on speaker,
and recorded it. In the call, the victim spoke with the appellant about the injuries he had
inflicted, and he did not deny doing so.
{¶7} Officers executed a search warrant and found the handgun. Shortly
thereafter, a friend of the appellant’s mother contacted the victim, claiming to work for
the NAACP. He asked her to sign a typewritten statement which said, among other
things, that appellant did not shoot her. The victim objected to this, and added the
phrase “but had shot at” her. She then signed this statement.
{¶8} Sometime later, the same man approached appellant with another
typewritten statement that said appellant did not shoot her, at her, did not hit her, did not
hurt her in any way, and the allegations and charges against him were completely false.
The victim signed the statement.
{¶9} At trial, the victim and Lovett testified to the events of March 18, and March
25. Brodnaxe also testified for the State, corroborating their testimony. Richland County, Case No. 2010-CA-0008 4
{¶10} During the direct examination of the victim, she testified she had made the
phone call to appellant, knowing it was recorded. The victim testified she had listened
to the recording and had seen a transcript of the call. She reviewed the transcript and
made corrections to it, and testified it was accurate. The State asked to introduce the
tape recorded phone conversation between appellant and the victim.
{¶11} The State offered to give the jury copies of a transcript of the call for the
jury to follow along with as the tape was played, because of the poor quality of the tape
recording. Appellant’s counsel objected, informing the court counsel had never seen the
transcript. He stated: “*** this call is really hard to hear. It’s difficult to hear him. I don’t
know what they figured out, whoever typed this, what they thought he said. It’s unclear.
I haven’t seen the transcript. I figured if they wanted to listen to the tape, they can listen
to the tape.”
{¶12} The State conceded the call was difficult to hear, but informed the court the
victim and the detective had both reviewed the transcript and it was accurate.
Appellant’s counsel objected that the tape had not been verified. Counsel conceded that
some of the transcript was accurate, but argued he had been unable to distinguish parts
of the tape, and believed some of the transcript might be incorrect. Thereupon, the court
permitted the State to give the jurors the transcripts and play the tape.
{¶13} After the State played the tape, the victim testified the tape was an
accurate recording of her conversation with the appellant. Detective Shook testified later
in the trial, and described how the tape recording was made. He also testified the
transcript was accurate. Richland County, Case No. 2010-CA-0008 5
{¶14} Appellant argues the trial court committed reversible error in allowing the
jury to receive a transcript of the controlled phone call while the call was being played.
Appellant cites us to Evid. R. 1002, the “Best Evidence Rule”. The Rule provides the
original writing, recording, or photograph is required to prove the content of the writing,
recording, or photograph except as otherwise provided by the Rules or the Supreme
Court.
{¶15} Appellant correctly states the tape recording was the best evidence of its
contents. Appellant cites us to Harleysville Mutual Insurance Company v. Santora
(1982), 3 Ohio App. 3d 257, 444 N.E. 2d 1076. In the Santora case, the Court of
Appeals for the 8th District, Cuyahoga County, held a transcript is not admissible in
evidence if the original tape recorded conversation is available. The court reasoned a
transcript cannot capture the intangibles of conversation such as voice, tone, emphasis,
evasiveness, faltering, or emotions. The court also cautioned providing both a transcript
and the original tape might give undue emphasis to the content or give the jury the
impression the court believed it was especially good and/or significant.
{¶16} The State points out the 8th District later disapproved the Santora case in
State v. Graves (October 6, 1994), Cuyahoga App. No. 66238. In Graves, the Court of
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[Cite as State v. Pointer, 2011-Ohio-260.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-CA-0008 ARTENSON POINTER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 09-CR- 485
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 20, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. R. JOSHUA BROWN Prosecuting Attorney 32 Lutz Avenue 38 South Park Street Lexington, OH 44904 Mansfield, OH 44902 [Cite as State v. Pointer, 2011-Ohio-260.]
Gwin, P.J.
{¶1} Defendant Artenson Pointer appeals a judgment of the Court of Common
Pleas of Richland County, Ohio, which convicted and sentenced him after a jury found
him guilty of four counts of kidnapping with firearm specifications; two counts of
felonious assault, one of which carried a firearm specification; one count of having
weapons under a disability; one count of intimidation; and two counts of abduction with
firearm specifications. Three other counts of having weapons under a disability were
dismissed, and the court merged three of the kidnapping counts with the abduction
counts. Appellant assigns a single error to the trial court:
{¶2} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE JURY TO RECEIVE A TRANSCRIPT OF A CONTROLLED PHONE
CALL WHILE THAT CALL WAS BEING PLAYED FOR THE JURY.”
{¶3} On or about March 18, 2009, appellant and the victim were together in
Mansfield, Richland County, Ohio. Nolan Lovett joined them. Appellant became upset
with Lovett, and beat him up.
{¶4} Learning various rumors were spreading about appellant and Lovett, the
two men met together to determine the source of the rumors. Concluding the victim
was spreading lies about them, appellant, Lovett and Camille Brodnaxe agreed to
confront her. The appellant, the victim, and Lovett got into the victim’s car to take her to
Brodnaxe’s apartment. The victim did not wish to go, and eventually pulled the keys
from the ignition. Appellant produced a .22 handgun and Lovett exited the car.
Appellant fired a shot which did not strike the victim, but lodged in the gearbox of the
vehicle. Richland County, Case No. 2010-CA-0008 3
{¶5} Appellant, Lovett, and the victim then went to Brodnaxe’s apartment. At
some point during the confrontation, appellant struck the victim once in the face and
once in the ribs. The punch to the ribs caused the victim to have difficulty breathing. At
that point, Brodnaxe intervened. Appellant left Brodnaxe’s apartment with the victim
and eventually took her to the emergency room. There, the victim told the hospital
personnel she had been attacked by two transients.
{¶6} The following day, one of the victim’s co-workers noticed her injuries and
called the police. Detective Jeffrey Shook contacted the victim, and she told him
appellant had shot at her and punched her. Detective Shook had the victim make a
phone call to the appellant on her cell phone, while the detective listened on speaker,
and recorded it. In the call, the victim spoke with the appellant about the injuries he had
inflicted, and he did not deny doing so.
{¶7} Officers executed a search warrant and found the handgun. Shortly
thereafter, a friend of the appellant’s mother contacted the victim, claiming to work for
the NAACP. He asked her to sign a typewritten statement which said, among other
things, that appellant did not shoot her. The victim objected to this, and added the
phrase “but had shot at” her. She then signed this statement.
{¶8} Sometime later, the same man approached appellant with another
typewritten statement that said appellant did not shoot her, at her, did not hit her, did not
hurt her in any way, and the allegations and charges against him were completely false.
The victim signed the statement.
{¶9} At trial, the victim and Lovett testified to the events of March 18, and March
25. Brodnaxe also testified for the State, corroborating their testimony. Richland County, Case No. 2010-CA-0008 4
{¶10} During the direct examination of the victim, she testified she had made the
phone call to appellant, knowing it was recorded. The victim testified she had listened
to the recording and had seen a transcript of the call. She reviewed the transcript and
made corrections to it, and testified it was accurate. The State asked to introduce the
tape recorded phone conversation between appellant and the victim.
{¶11} The State offered to give the jury copies of a transcript of the call for the
jury to follow along with as the tape was played, because of the poor quality of the tape
recording. Appellant’s counsel objected, informing the court counsel had never seen the
transcript. He stated: “*** this call is really hard to hear. It’s difficult to hear him. I don’t
know what they figured out, whoever typed this, what they thought he said. It’s unclear.
I haven’t seen the transcript. I figured if they wanted to listen to the tape, they can listen
to the tape.”
{¶12} The State conceded the call was difficult to hear, but informed the court the
victim and the detective had both reviewed the transcript and it was accurate.
Appellant’s counsel objected that the tape had not been verified. Counsel conceded that
some of the transcript was accurate, but argued he had been unable to distinguish parts
of the tape, and believed some of the transcript might be incorrect. Thereupon, the court
permitted the State to give the jurors the transcripts and play the tape.
{¶13} After the State played the tape, the victim testified the tape was an
accurate recording of her conversation with the appellant. Detective Shook testified later
in the trial, and described how the tape recording was made. He also testified the
transcript was accurate. Richland County, Case No. 2010-CA-0008 5
{¶14} Appellant argues the trial court committed reversible error in allowing the
jury to receive a transcript of the controlled phone call while the call was being played.
Appellant cites us to Evid. R. 1002, the “Best Evidence Rule”. The Rule provides the
original writing, recording, or photograph is required to prove the content of the writing,
recording, or photograph except as otherwise provided by the Rules or the Supreme
Court.
{¶15} Appellant correctly states the tape recording was the best evidence of its
contents. Appellant cites us to Harleysville Mutual Insurance Company v. Santora
(1982), 3 Ohio App. 3d 257, 444 N.E. 2d 1076. In the Santora case, the Court of
Appeals for the 8th District, Cuyahoga County, held a transcript is not admissible in
evidence if the original tape recorded conversation is available. The court reasoned a
transcript cannot capture the intangibles of conversation such as voice, tone, emphasis,
evasiveness, faltering, or emotions. The court also cautioned providing both a transcript
and the original tape might give undue emphasis to the content or give the jury the
impression the court believed it was especially good and/or significant.
{¶16} The State points out the 8th District later disapproved the Santora case in
State v. Graves (October 6, 1994), Cuyahoga App. No. 66238. In Graves, the Court of
Appeals found a trial court has discretion to use transcripts of taped recordings as a
listening aid as long as the accuracy of the transcripts is not challenged. In Graves, the
officer who transcribed the tape testified regarding how the transcript was produced,
and the trial court reviewed the tape and compared it to the transcript. The Court of
Appeals found the only challenge to the evidence was the defendant’s assertion it was
not his voice on the tape. The Court of Appeals found that because the defendant had Richland County, Case No. 2010-CA-0008 6
testified at trial, the jury was able to compare his voice to that on the tape. The court
also found no prejudice in the transcript identifying the defendant as one of the
speakers on the tape. The court found Santora would apply if the only proof of the
conversation was the transcript, and there was no recording available. The court found
the jurors in this case listened to the tapes while using the transcript as an aid and the
transcript did not give “emotive direction” to the jurors. The court found the jury would
rely on the recorded words rather than the transcript. Graves at 4.
{¶17} The State cites State v. Waddy (1992), 63 Ohio St. 3d 424, 588 N.E. 2d
819. In Waddy, the defendant argued the use of the transcripts to help the jurors follow
the tapes violated the Best Evidence Rule. The Supreme Court found because the
transcripts were not admitted into evidence, the Rules of Evidence were irrelevant. The
court found the defendant had conceded the transcripts’ accuracy, and the court itself
compared the tapes and transcripts. The court concluded if there are no material
differences between the tape admitted into evidence and a transcript given to the jury as
a listening aid, there is no prejudicial error. Waddy at 445, citing State v. Holmes
(1987), 36 Ohio App. 3d 44, 521 N.E. 2d 479 and United State v. Smith (C.A. 6, 1976),
537 F. 2d 862. Waddy was later overruled by the Ohio Supreme Court on a different
issue in State v. Smith (1997), 80 Ohio St. 3d 89, 1997 -Ohio- 355, 684 N.E.2d 668.
{¶18} In the Holmes case, the court found the Santora case held the transcript
was inadmissible because the original recording was available and the transcript was
not prepared by an objective third party. The original recordings in the Holmes case
were available, although not “fully audible”. The court concluded the trial court did not
observe procedural safeguards such as making a methodical review of the tapes and Richland County, Case No. 2010-CA-0008 7
transcripts in defense counsel’s presence and marking corrections on the transcripts.
The Holmes court found, however, the appellant did not point out any material
differences between the tapes and the transcripts supplied to the jury as a listening aid,
and found no prejudicial error in the trial court’s exercise of its discretion.
{¶19} The State points out the victim and Detective Shook, who were both
present during the phone call, reviewed the transcript and testified it accurately related
what was said during the phone call. The State also asserts the jury was allowed only
the recording during deliberation and the transcripts were never offered as evidence.
Appellant does not allege any inaccuracies in the transcript.
{¶20} The jury also heard the testimony of Brodnaxe and Lovett, and viewed
photographs of the bullet hole in the victim’s car. There was ample evidence in addition
to the tape recorded conversation.
{¶21} This court cannot reverse the court’s decision unless we find it abused its
discretion. “The term ‘abuse of discretion’ * * * implies that the court's attitude is
unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151,
157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v. Custer (1940), 137 Ohio St. 448,
19 O.O. 148, 31 N.E.2d 855.
{¶22} We find the trial court did not abuse its discretion in permitting the jury to
use the transcripts as a listening aid while the recording was being played.
{¶23} The assignment of error is overruled. Richland County, Case No. 2010-CA-0008 8
{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. SHEILA G. FARMER
_________________________________ HON. PATRICIA A. DELANEY
WSG:clw 0106 [Cite as State v. Pointer, 2011-Ohio-260.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : ARTENSON POINTER : : : Defendant-Appellant : CASE NO. 2010-CA-0008
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to
appellant.