State v. Rasheed

2023 Ohio 906

• Court: Ohio Court of Appeals
• Decided: March 22, 2023
• Docket: C-220194
• Status: Published

Opinion

[Cite as State v. Rasheed, 2023-Ohio-906.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220194 TRIAL NO. C-21CRB-16273 Plaintiff-Appellee, :

vs. : O P I N I O N. THERON RASHEED, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 22, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Defendant-appellant Theron Rasheed appeals his conviction for sexual

imposition under R.C. 2907.06. We affirm the conviction.

I. Facts and Procedure

{¶2} Rasheed and G.G., the complaining witness in this case, worked

together at Noodles & Company in Colerain. In August 2021, Rasheed, G.G., and four

other employees were closing the restaurant. The complaint alleged that Rasheed

walked past G.G. on multiple occasions and rubbed his pelvis against her buttocks.

{¶3} At a jury trial, G.G. testified that Rasheed walked past her “on multiple

occasions using his crotch area, his penis to rub up against the back side of me” and

that she “felt his genitals in his pants.” She also testified that Rasheed’s “hands grazed

[her buttocks] at [sic] multiple occasions.” G.G. reported the incident to the police

three days later.

{¶4} The state played its “Exhibit A,” which was a surveillance video from

inside the restaurant on the evening of the incident. G.G. identified herself as the

employee wearing a green shirt. Rasheed was wearing a gray shirt. The video showed

Rasheed make contact with G.G. multiple times. G.G. testified that either his arm, leg,

or “penis and his crotch area” touched her buttocks. She testified that there was

enough room for him to pass without touching her. While G.G. testified that she

assumed the first contact was an accident, the last encounter, where Rasheed “very

forcefully” pressed his crotch area up against G.G.’s “entire back” was the “worst of the

multiple interactions * * * he was very forceful and it was very violating.” G.G. testified

that, at this point, she was “very uncomfortable.” G.G. asserted that Rasheed was

taking photographs of her with his phone because it was facing her. She further stated 2 OHIO FIRST DISTRICT COURT OF APPEALS

that Rasheed was walking around her area sweeping near her, but the area was still

messy because there was sweeping left to do.

{¶5} G.G. resigned from Noodles & Company a week later because she felt

unsafe working at the restaurant.

{¶6} The state sought to admit a second surveillance video from the

restaurant that purported to depict Rasheed pressing the front of his body against the

back of a woman’s body two days later. G.G. was not in the second video or at the

restaurant on the date the second video was recorded. Rasheed objected to its

admission. The state argued that G.G. could authenticate the video using pictorial

testimony. The trial court overruled Rasheed’s objection to the video and allowed the

jury to view it in its entirety, limiting G.G.’s testimony to the identification of Rasheed.

{¶7} G.G. identified Rasheed in the second video, but she could not testify to

where the recording equipment was kept or identify any other employees in the second

video.

{¶8} Colerain Police Officer Brent Wethington testified that the footage from

the restaurant showed Rasheed “very clearly using [his phone] to take pictures and/or

videos of the victims.” He seized Rasheed’s cell phone to search for photographs of

G.G. but found none. Wethington testified that three days had passed since the

incident and that law enforcement could “potential[ly]” extract deleted data.

{¶9} The jury found Rasheed guilty of sexual imposition under R.C. 2907.06.

The trial court sentenced Rasheed to 60 days in jail, with a credit of ten days and 40

days suspended. The court imposed $110 in court costs, $500 in fines, placed Rasheed

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on probation1 for one year with counseling for sex offenses, and required him to

register as a Tier I sex offender.

II. Law and Analysis

A. The second video was improperly admitted

{¶10} Rasheed’s first and second assignments of error assert that the trial

court improperly admitted the second video. First, he argues that the state failed to

properly authenticate the video. Second, he argues that the second video contained

improper propensity evidence and was inadmissible under Evid.R. 404(B).

{¶11} We review a challenge to authentication for an abuse of discretion. State

v. Searles, 1st Dist. Hamilton Nos. C-180339 and C-180340, 2019-Ohio-3109, ¶ 7.

Evid.R. 901(A) states that “[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.” State v. Thyot, 2018-

Ohio-644, 105 N.E.3d 1260, ¶ 18 (1st Dist.). Put another way, “[t]he authentication

requirement is satisfied when the proponent presents foundational evidence or

testimony from which a rational jury may determine that the evidence is what its

proponent claims it to be.” Id., quoting State v. Crossty, 2017-Ohio-8382, 99 N.E.3d

1048, ¶ 29 (1st Dist.).

{¶12} Generally, photographic evidence may be authenticated by two means:

the “pictorial testimony” theory or under the “silent witness” theory. Thyot at ¶ 19.

Under the “pictorial testimony” theory, a sponsoring witness must establish that the

1 The docket reflects that Rasheed was placed on community control for one year “pay thru probation,” while the judge’s sheet states that he was sentenced to probation. “Community control is the functional equivalent of probation * * *.” State v. Chapman, 163 Ohio St. 3d 290, 2020-Ohio- 6730, 170 N.E.3d 6, ¶ 8, fn. 1. 4 OHIO FIRST DISTRICT COURT OF APPEALS

evidence is an accurate representation of the subject matter based on the witness’s

personal observation, as the evidence is merely illustrative of the witness’s testimony.

Searles at ¶ 8; see State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d

1023, ¶ 150 (differentiating between the theories and finding that the “silent witness”

theory was applicable to the evidence at issue).

{¶13} Conversely, the “silent witness” theory does not require an

independent sponsoring witness because the evidence speaks for itself and is

admissible when there is “a sufficient showing of the reliability of the process or system

that produced the photographic evidence.” (Citations omitted.) Midland Steel Prods.

Co. v. U.A.W. Local 488, 61 Ohio St.3d 121, 130, 573 N.E.2d 98 (1991) (testimony was

sufficient to show that a surveillance system and the video it produced was reliable for

purposes of authentication).

{¶14} In Searles, this court considered photographs that were admitted under

the “pictorial testimony” theory through the victim’s testimony. Searles, 1st Dist.

Hamilton Nos. C-180339 and C-180340, 2019-Ohio-3109, at ¶ 9. At trial, the victim

testified that the photographs were a fair and accurate representation of her injuries

resulting from the fight in question. Id. The victim testified that she had reviewed the

photographs and testified who took the photos of her injuries. Id. We held that the

witness properly authenticated the photographs. Authenticating evidence under the

“pictorial testimony” theory does not require calling the witness who took the

photograph; instead, the pictorial-testimony theory requires a witness with knowledge

who can testify that the photographs reflect a fair and accurate representation of the

subject matter. Id.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} Here, the second video was offered as pictorial testimony. Therefore, the

evidence should merely illustrate the witness’s testimony. That was not the case here.

G.G. was not present for the events that occurred during the video. While she could

identify Rasheed and the restaurant in the video, she could not testify first-hand to

what the video contained. The state failed to call anyone with first-hand knowledge.

As such, the trial court abused its discretion by improperly admitting a video that was

not merely illustrative of G.G.’s testimony.

{¶16} Moreover, the second video was not properly authenticated under the

silent-witness theory. G.G. could not testify to the manner in which the recording

system operated or was maintained. The state did not call anyone who could testify to

the operations or procedures that the restaurant used to record and store footage.

{¶17} The trial court abused its discretion by admitting the second video

because it was not properly authenticated.

B. Admission of the second video was harmless error

{¶18} While we agree with Rasheed that the second video was not properly

authenticated, its admission was harmless error.

{¶19} To determine whether improper admission of evidence affects a

defendant’s substantial rights, thus requiring a new trial, we first consider whether the

improper admission of evidence may have prejudiced the defendant. State v. Morris,

141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 27. Next, we look to whether

the error was harmless beyond a reasonable doubt. Id. at ¶ 28. An error is not harmless

if, under the facts and circumstances of the case, there is a reasonable probability that

the improperly-admitted evidence contributed to the conviction. Id. To make that

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determination, the court must excise the improper evidence from the record and

consider the remaining evidence. Id. at ¶ 29.

{¶20} An error is harmless if after “this evidence is removed, the outcome of

the trial would be the same because the remaining evidence is overwhelming.” State

v. English, 1st Dist. Hamilton No. C-180697, 2020-Ohio-4682, ¶ 68; see State v. Hood,

135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 43.

{¶21} We find that the remaining evidence overwhelmingly supported

Rasheed’s guilt and the second video was not necessary to support his conviction.

{¶22} Rasheed was convicted of sexual imposition under R.C. 2907.06, which

prohibits a person from having sexual contact with another, who is not the spouse of

the offender, when the offender knows that the sexual conduct is offensive to the other

person.

{¶23} The first video, along with G.G.’s testimony, showed that Rasheed

purposely made sexual contact with G.G. on multiple occasions. The video depicts

that, despite having room to maneuver through the restaurant and avoiding contact

with other employees, Rasheed forcefully pressed his groin against her buttocks. G.G.

testified that she was offended by the contact and that it made her uncomfortable.

{¶24} Viewing the video in conjunction with G.G.’s uncontroverted testimony,

we find overwhelming evidence that supported Rasheed’s conviction—he would have

been convicted without the improperly-admitted evidence. Therefore, any error in

admitting the second video was harmless and no new trial is required. We overrule

Rasheed’s first assignment of error.

{¶25} Rasheed also assigns as error the admission of the second video under

Evid.R. 404(B), asserting that it contained improper propensity evidence. Rasheed’s

7 OHIO FIRST DISTRICT COURT OF APPEALS

argument involving harmless error referred this court to his harmless-error argument

under his first assignment of error. Because we have determined that any error in the

admission of the second video was harmless, we overrule Rasheed’s second

assignment of error.

C. The evidence was sufficient to support the conviction and the conviction was not contrary to the weight of the evidence

{¶26} Rasheed’s third assignment of error argues that the record is not

sufficient to show that his actions were purposeful and motivated by sexual

gratification or arousal and that his conviction is contrary to the weight of the

evidence.

The evidence was sufficient to support the conviction.

{¶27} The test for determining the sufficiency of the evidence is whether “after

viewing the probative evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt.” State v. MacDonald, 1st

Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). It presents a question of law for this court’s

review and this court should not weigh the evidence unless, after viewing the evidence,

it weighs heavily against conviction. MacDonald at ¶ 12.

{¶28} Rasheed contends that he did not violate any company or employee

policy by helping his coworkers where he is designated to work in the kitchen. He

asserts that any contact made with G.G. was incidental due to the small spaces in the

restaurant. He points out that none of the other employees who were present that 8 OHIO FIRST DISTRICT COURT OF APPEALS

evening corroborated her version of the events. Rasheed denies any allegation that he

was photographing or videotaping her, contending that the record reflects that he did

not take pictures of G.G.

{¶29} The evidence was sufficient to show that Rasheed made unwanted

sexual contact with G.G. on multiple occasions. The video shows Rasheed pressing his

pelvic area against G.G.’s backside three different times. His thin stature, when

compared to the space where G.G. was standing as he passed her, shows that he had

ample room to avoid touching her. Or he could have maneuvered through the

restaurant via a different path. Further, Rasheed avoided contact with the other four

people working in the area, including one woman who was similar in size to G.G.

{¶30} Although it appeared from the video that Rasheed took photos of G.G.,

whether he did so was irrelevant. The evidence was sufficient to show that Rasheed

intended to rub himself against G.G.’s buttocks.

The conviction was not contrary to the weight of the evidence.

{¶31} In reviewing a weight-of-the-evidence claim, this court must review “the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses 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. Bailey,

1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v. Thompkins,

78 Ohio St.3d 380, 678 N.E.2d 541 (1997). “When evidence is susceptible to more than

one construction, a reviewing court must give it the interpretation that is consistent

with the judgment.” In re J.C., 1st Dist. Hamilton No. C-180493, 2019-Ohio-4027, ¶

20.

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶32} The weight of the evidence and the credibility of the witnesses are

primarily for the trier of fact. Bailey at ¶ 63. In reviewing a challenge to the weight of

the evidence, this court sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton

No. C-190107, 2020 Ohio App. LEXIS 1184, ¶ 17 (Mar. 31, 2020), quoting Thompkins

at 387. But this court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its

way in arriving at its verdict. Bailey at ¶ 63.

{¶33} Reversing a conviction and granting a new trial should only be done in

“exceptional cases in which the evidence weighs heavily against the conviction.” Id.

“The trier of fact is in the best position to judge the credibility of the witnesses and the

weight to be given to the evidence presented.” State v. Carson, 1st Dist. Hamilton No.

C-180336, 2019-Ohio-4550, ¶ 16.

{¶34} This was not one of those exceptional cases. The evidence weighed in

favor of Rasheed’s conviction. The trial court did not lose its way or create a

miscarriage of justice. Rasheed’s third assignment of error is overruled.

III. Conclusion

{¶35} While the trial court abused its discretion by admitting improperly-

authenticated evidence, the error was harmless because Rasheed’s conviction was

overwhelmingly supported by the remaining evidence. We affirm the trial court’s

judgment.

Judgment affirmed.

CROUSE, P.J., concurs.

WINKLER, J. concurs in judgment only.

10 OHIO FIRST DISTRICT COURT OF APPEALS

Please note:

The court has recorded its entry on the date of the release of this opinion.