State v. Sheckles

2023 Ohio 133

• Court: Ohio Court of Appeals
• Decided: January 18, 2023
• Docket: C-220255 & C-220256
• Status: Published

Opinion

[Cite as State v. Sheckles, 2023-Ohio-133.]

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

STATE OF OHIO, : APPEAL NOS. C-220255 C-220256 Plaintiff-Appellant, : TRIAL NO. B-1907173

vs. : O P I N I O N. SONTEZ SHECKLES, :

Defendant-Appellee. :

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: January 18, 2023

Mark Piepmeier, Interim Hamilton County Prosecuting Attorney, and Ronald Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant Public Defender, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.

{¶1} The state appeals from the trial court’s pretrial rulings on two motions

in limine, one prohibiting a state’s witness from testifying at trial, and one excluding a

compilation video that the state intended to introduce at trial. For the following

reasons, we affirm the judgments of the trial court.

Factual Background

{¶2} On January 2, 2020, Sontez Sheckles was charged with attempted

murder with gun specifications, felonious assault with gun specifications, and having

weapons while under a disability, stemming from a shooting that occurred at Chalet

Bar on November 29, 2019. The case was scheduled for a bench trial on May 12, 2022.

Although Sheckles was ready to proceed, the state requested a continuance to procure

a witness to authenticate a compilation video created by a Cincinnati police officer

from raw footage obtained from the cameras at Chalet Bar. Over objection by

Sheckles, the court continued the trial until May 25, 2022. The court warned the

prosecutor that if the witness were not present, the video would be excluded.

{¶3} A week later, the state emailed a certified copy of a federal plea

agreement to defense counsel that it intended to introduce at trial. The document had

been certified that day. In a federal case related to the shooting, Sheckles had pleaded

guilty to possession of ammunition. In order to introduce the document, the state

subpoenaed Zachary Kessler to testify. Kessler, a former prosecutor for the United

States Department of Justice, had participated in the federal plea agreement. The

state had previously notified Sheckles on April 7, 2022, that Kessler had been added

to its witness list.

{¶4} On the morning of the rescheduled trial, Sheckles filed a motion to

quash the subpoena issued to Kessler. The basis of the motion was that Kessler, as a

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former Department of Justice employee, was prohibited from testifying or producing

documents acquired while performing his official duties without obtaining prior

approval by a Department of Justice official under 28 C.F.R. 16.22. The prior approval

is referred to as a “Touhy letter.”

{¶5} The prosecutor informed the court that Kessler was present and would

testify about the federal plea and the written statement included in the plea

documents. Kessler represented to the court that he had spoken with Brandi Stewart

at the United States Attorney’s Office that morning, and she would try to contact the

court or provide the Touhy letter sometime that day.

{¶6} The court reviewed the plea document, but the document is not part of

this record. The prosecutor informed the judge that it was a lengthy document, and

the last page was a statement of facts acknowledged by Sheckles when he pled guilty

to possession of ammunition. When the court informed the state that Kessler could

not testify without the letter, the prosecutor responded that Kessler could “testify in

part without the letter.” However, the prosecutor never explained why Kessler could

testify without the Touhy letter or proffered the testimony of Kessler that would be

admissible without the Touhy letter.

{¶7} The judge again asked when the Touhy letter would be available, and

Kessler responded that he was told, “by today,” but, “I don’t know.” The court

explained that it could not determine whether Kessler could testify without the letter.

Kessler offered to contact Stewart again to obtain more information. Notably, Kessler

never represented to the court that he could testify without the authorization.

{¶8} The court informed defense counsel that Sheckles did not have standing

to object to the subpoena, but could file a motion in limine. The proceedings were

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paused, and Sheckles filed a motion in limine addressing Kessler’s testimony. When

the proceedings resumed, the court gave the state the opportunity to respond to the

motions in writing, but the prosecutor stated he would respond orally.

{¶9} The court addressed the authentication of the video, which had

prompted the state’s prior continuance. The state had the husband and wife, who co-

owned the bar, present to testify. Sheckles objected to the witnesses because they had

not been previously disclosed by the state and further argued that the witnesses could

not authenticate a compilation video created by the Cincinnati Police Department.

The video was produced from raw footage, and Sheckles had not received any raw

video in discovery, only the compilation video.

{¶10} The prosecutor confirmed that the raw footage had been requested in

discovery, and that Sheckles had been informed of the raw footage, but did not ask to

view it at the prosecutor’s office or provide a computer disc, so it was not provided.

Instead, the state provided a compilation video. According to the state’s discovery

response, the state provided “surveillance videos from Chalet nightclub.” The

discovery response did not mention any additional video footage. The prosecutor also

admitted that the state did not supplement its discovery response with any additional

witnesses, including the names of the bar owners. The prosecutor admitted the

omissions could be considered discovery violations, and argued that the court was

obligated to rule on any discovery violations in the least restrictive manner.

{¶11} The court expressed its frustration that these issues were not addressed

prior to trial given the length of time the case was pending. The case had been pending

prior to the judge taking the bench. The court concluded, “And I think it’s bad faith

on the prosecution not to have all this to you before the day of trial. * * * And I’m just

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putting that on the record because you know where I’m going with this.”

{¶12} The court further stated that they had been waiting three hours for a

Touhy letter and asked Kessler for an update. Kessler represented that the letter had

been sent to the prosecutor’s office, and forwarded to him so that he knew “the extent

to which the Touhy letter authorization is granted with respect to the testimony that I

can be expected to give today.” Kessler represented that he had a copy of the letter on

his phone, “so as far as he knew.”

{¶13} The trial court excluded Kessler’s testimony because the Touhy letter

was never produced. Although the prosecutor offered to give the court Kessler’s cell

phone, the state never submitted the Touhy letter to the court or proffered it for the

record on appeal.

{¶14} After another break, the parties addressed the authentication of the

video. The witness who was available to authenticate the video was a co-owner of the

bar. When it was discovered that he had a criminal record that prohibited him from

owning a bar, the state decided to call his wife and co-owner of the bar, Victoria Evans,

to authenticate the video. However, the state had already released her from testifying,

so another pause was taken to await her return.

{¶15} Upon her return, Evans testified that she co-owned the Chalet Bar with

her husband when the incident occurred. Evans confirmed that the bar has multiple

cameras in different locations, but she does not download videos from the recording

system or cut and splice them together. On November 29, 2019, detectives or police

officers removed the hard drive containing all the video recordings from the bar.

{¶16} The following exchange occurred between Evans and the judge:

Judge: Have you ever seen this compilation video?

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Evans: This?

Judge: Yes.

Evans: Like put the whole video, no.

Judge: That’s all I need to know. You can’t say that you’ve seen this whole

video?

Evans: The whole video or –

Judge: This compilation the way it’s presented in court today.

Evans: No.

{¶17} When questioned by the state, Evans acknowledged that she had a video

on her phone that she had watched a few minutes before testifying. She confirmed

that the video showed the outside of the bar and different scenes from the inside of the

bar from four different cameras. When asked “were those authentic videos of your bar

and your recording system from that night?,” she responded, “They were.”

{¶18} The court determined that Evans could not authenticate the video

because her equipment did not produce the video, and she did not know how it was

cut or spliced together. The court reminded the state that the sole purpose of the

hearing was to authenticate the video, and the court was unwilling to wait for the state

to procure the officer who created the video. The court granted the motion in limine

to exclude the video.

{¶19} The state asked the court to reconsider the rulings. When the court

declined, the prosecutor informed the court that the state was not ready to proceed to

trial, and instead, would appeal the decision. The state did not seek to admit the

compilation video into evidence or proffer it for the record on appeal.

{¶20} The state appealed both orders, in accordance with Crim.R. 16(K),

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certifying in its notice of appeal that “(1) the appeal is not taken for purpose of delay;

and (2) the ruling excluding evidence has rendered the State’s proof with respect to

the pending charge so weak in its entirety that any reasonable possibility of effective

prosecution has been destroyed.”

Standard of Review

{¶21} A motion in limine, if granted, is a tentative, precautionary ruling by the

trial court that reflects its anticipated treatment of the evidence until the admissibility

can be determined during trial. State v. Grubb, 28 Ohio St.3d 199, 201-202, 503

N.E.2d 142 (1986). Generally, appellate courts review rulings on motions in limine for

an abuse of discretion, but where, as here, the state certifies that the ruling is the

functional equivalent of a suppression ruling, we use the standard of review for

motions to suppress. See State v. Thyot, 2018-Ohio-644, 105 N.E.3d 1260, ¶ 16 (1st

Dist.).

{¶22} Appellate review of a motion to suppress presents a mixed question of

law and fact. We must accept the trial court’s findings of fact as true if competent,

credible evidence supports them. But we must independently determine whether the

facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Law and Analysis

{¶23} In the first assignment of error, the state contends that the trial court

erred in excluding Kessler’s testimony. Specifically, the state argues it had the Touhy

letter available in court, but that the court refused to review it. The state further argues

that the court erred by excluding Kessler’s testimony pursuant to a motion in limine,

and instead, should have allowed the state to produce the letter at trial before ruling

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on the admissibility of Kessler’s testimony. Finally, the state asserts that no legal rule

prohibited Kessler from testifying other than possible consequences from the

Department of Justice.

{¶24} Although the state contends that the Touhy letter was available for the

court to review, that is not what the record reflects. Rather, the record reflects that the

letter may have been attached to an email contained on Kessler’s cell phone.

Significantly, the record reflects that the state never produced the letter to the trial

court. Moreover, the content of the letter was never proffered in court or made part of

the record on appeal. Therefore, we find no merit to this argument.

{¶25} The state contends that the court should have allowed it to produce the

letter at trial before definitively ruling to exclude Kessler’s testimony prior to trial.

However, after the court ruled on the motion in limine, the state chose to appeal the

ruling instead of proceeding to trial. We cannot speculate as to whether the court

would have allowed the state to present a Touhy letter at trial and admitted Kessler’s

testimony.

{¶26} Without citing to any legal authority, the state claims that the federal

regulation does not prohibit a witness from testifying, rather, it merely subjects an

employee to possible consequences from the Department of Justice if the employee

testifies without prior authorization.

{¶27} 28 C.F.R. 16.22 states in relevant part:

(a) In any federal or state case or matter in which the United States is

not a party, no employee or former employee of the Department of

Justice shall, in response to a demand, produce any material contained

in the files of the Department, or disclose any information relating to or

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based upon material contained in the files of the Department, or

disclose any information or produce any material acquired as part of the

performance of that person’s official duties or because of that person’s

official status without prior approval of the proper Department official

in accordance with §§ 16.24 and 16.25 of this part.

***

(c) If oral testimony is sought by a demand in any case or matter in

which the United States is not a party, an affidavit, or, if that is not

feasible, a statement by the party seeking the testimony or by his

attorney, setting forth a summary of the testimony sought and its

relevance to the proceeding, must be furnished to the responsible U.S.

Attorney. Any authorization for testimony by a present or former

employee of the Department shall be limited to the scope of the demand

as summarized in such statement.

{¶28} Thus, 28 C.F.R. 16.22 forbids former employees of the Department of

Justice from testifying in proceedings in which the United States is not a party, without

the prior approval of the department. To obtain prior approval, a party seeking that

testimony must furnish an affidavit or statement summarizing the testimony sought.

28 C.F.R. 16.21(b). The regulations controlling the testimony of former employees are

valid. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 467-469, 71 S.Ct. 416,

95 L.Ed. 417 (1951).

{¶29} However, the state did not raise this argument in the trial court and has

therefore forfeited the issue for appellate review. See State v. Awan, 22 Ohio St.3d

120, 122, 489 N.E.2d 277 (1986) (It is a well-established rule that “an appellate court

9 OHIO FIRST DISTRICT COURT OF APPEALS

will not consider any error which counsel for a party complaining of the trial court’s

judgment could have called but did not call to the trial court’s attention at a time when

such error could have been avoided or corrected by the trial court.”). Even assuming

the issue was preserved for appeal, “absent a proffer or questioning that makes the

substance of the excluded evidence apparent, a party cannot argue before an appellate

court that the trial court erred in the exclusion of evidence.” Ellinger v. Ho, 10th Dist.

Franklin No. 08AP-1079, 2010-Ohio-553, ¶ 34; State v. Lovelace, 137 Ohio App.3d

206, 223, 738 N.E.2d 418 (1st Dist.1999) (“We cannot pass on the admissibility of

proffered [evidence] not before us based solely on the representations of counsel as to

what those exhibits contain.”).

{¶30} Although the prosecutor represented to the court that Kessler could

“testify in part without the letter,” the prosecutor did not proffer the specific testimony

that Kessler could provide without the letter, and Kessler did not confirm the accuracy

of that statement. Contrary to the dissent’s finding that Kessler “expressed his

willingness and ability to testify,” the record reflects that Kessler, as a former

employee, never represented to the court that he was willing or able to testify without

the Touhy letter. Instead, he explained to the court that the letter would inform him

of “the extent to which the Touhy letter authorization is granted with respect to the

testimony that I can be expected to give today.” Kessler indicated that he had

contacted the appropriate person at the United States Attorney’s Office “to acquire a

Touhy letter pursuant to [his] testimony.”

{¶31} 5 U.S.C. 301 authorizes federal agencies to adopt regulations that

govern “the conduct of [their] employees ... and the custody, use, and preservation of

[agency] records, papers and property.” 28 C.F.R. 16.22(a) and (c), which govern

10 OHIO FIRST DISTRICT COURT OF APPEALS

proceedings in which the United States is not a party, prohibits testimony by former

employees “without prior approval of the proper Department official.” Even if Kessler

expressed a willingness to testify, his testimony was prohibited absent prior approval.

See id.

{¶32} The dissent claims that “Sheckles failed to demonstrate that the

Department of Justice did not waive any privilege of nondisclosure provided by its

regulations.” This assertion ignores the fact that the federal regulations require the

department’s approval prior to Kessler’s testimony. “[P]roperly promulgated agency

regulations implementing federal statutes have the force and effect of federal law

which state courts are bound to follow.” Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th

Cir.1989) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 295-296, 99 S.Ct. 1705, 60

L.Ed.2d 208 (1979)). A state court cannot allow a federal official to testify absent

compliance with the regulations requiring agency approval. See id. “Such action

plainly violates both the spirit and the letter of the Supremacy Clause.” Id. Thus,

without prior approval of the proper official in the form of a Touhy letter, the court

could not have compelled Kessler’s testimony, and Kessler gave no indication that he

would testify without the protection of the letter. See id.

{¶33} Accordingly, we overrule the first assignment of error.

{¶34} In the second assignment of error, the state argues that the trial court

erred in excluding the compilation video because it adequately authenticated the

video. Video evidence may be admissible under one of two theories: the “pictorial

testimony” theory or the “silent witness” theory. Midland Steel Prods. Co. v. Internatl.

Union, United Auto., Aerospace & Agricultural Implement Workers, Local 486, 61

Ohio St.3d 121, 129, 573 N.E.2d 98 (1991). Under the pictorial-testimony theory,

11 OHIO FIRST DISTRICT COURT OF APPEALS

evidence is admissible when a sponsoring witness can testify that it is a fair and

accurate representation of the subject matter, based on that witness’s personal

observation. Id. at 129-130. Thus, the evidence is merely illustrative of a witness’s

testimony. Id. Under the silent-witness theory, the evidence is a “silent witness which

speaks for itself, and is substantive evidence of what it portrays independent of a

sponsoring witness,” and the evidence may be admitted “upon a sufficient showing of

the reliability of the process or system that produced the evidence.” Id. at 129.

{¶35} Here, Evans testified that she co-owned the bar with her husband, and

the bar has multiple cameras that record different angles of the bar. Evans does not

download video from the recording system, and on the night in question, the police

took the hard drive containing all of the recorded video. When shown the compilation

video, Evans confirmed the video depicted the bar, but testified that she had never

seen it before. On cross-examination, she acknowledged that she had a video on her

phone that she had watched a few minutes before testifying, and she agreed that the

video depicted her bar and was from her recording system.

{¶36} Evans did not testify that she was present on the night of the shooting

or that the video was an accurate depiction of the scene of the shooting based on her

personal observations. Therefore, Evans was not a sponsoring witness who testified

based on her personal knowledge, and used the video to illustrate her testimony.

{¶37} Evans did not testify about the operation or reliability of the recording

system and had not reviewed or downloaded the video on the night in question. Thus,

her testimony did not establish the reliability of the bar’s security system and was

inadequate to authenticate the video as a silent witness. Id.

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{¶38} Although she agreed that the video was from her recording system, the

trial judge, who reviewed the video, found that the recording was not produced by the

bar’s recording system. And the prosecutor confirmed that the video was created by

police computer experts.

{¶39} The dissent reasons that Evans’s testimony authenticated the video

under the silent-witness theory, relying on State v. Pickens, 141 Ohio St.3d 462, 2014-

Ohio-5445, 25 N.E.3d 1023, overruled in part on other grounds, State v. Bates, 159

Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475. In that case, the witness’s testimony

based on “personal knowledge about the installation of the surveillance system, the

positioning of the cameras, and the method used for recording the video * * * showed

the reliability of the surveillance system and the videos produced by it.” Id. at ¶ 151.

Here, Evans did not provide any testimony about the recording system to establish its

reliability.

{¶40} However, the recording was not admitted as an exhibit or proffered for

our review. Significantly and as previously discussed, without the evidence, we cannot

determine whether the trial court erred and must presume the regularity of the

proceedings. See Ho, 10th Dist. Franklin No. 08AP-1079, 2010-Ohio-553, at ¶ 34;

Lovelace, 137 Ohio App.3d at 223, 738 N.E.2d 418; State v. Barnes, Slip Opinion No.

2022-Ohio-4486, ¶ 54 (Fischer, J., dissenting) (“[The appellant] has the burden to

ensure that all the evidence that is needed to resolve his appeal is before the court. * *

* So, since we cannot review the gunshot video, we cannot evaluate [appellant’s] claim.

Consequently, regularity of the trial court’s proceedings is presumed, Natl. City Bank

v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000), and we must affirm the

judgment of the [trial court].”).

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶41} The state further argues that the court erred by not waiting for an

additional witness to authenticate the video or allowing the state to have a witness

authenticate the video during trial. At the first trial setting, the state requested a

continuance specifically to secure a representative from the bar to authenticate the

video. At that time, the court warned the state that the video would be excluded if the

state failed to produce a witness to authenticate the video. At the second trial setting,

the state produced the testimony of Evans, but she was unable to authenticate the

video, prompting the court to grant the motion in limine to exclude it. Instead of

proceeding to trial and attempting to authenticate the video during the trial, the state

decided to appeal. We cannot and should not speculate as to whether the court would

have allowed the state’s additional witness to testify during the trial, especially when

the court itself characterized the ruling as a motion in limine, which by definition is a

preliminary ruling. We overrule the second assignment of error.

Conclusion

{¶42} Having overruled the state’s two assignments of error, we affirm the

judgments of the trial court.

Judgments affirmed. BERGERON, J., concurs. MYERS, P.J., dissents.

MYERS, P.J., dissenting.

{¶43} Because I would hold that Sheckles failed to establish any legal

evidentiary basis for excluding the testimony of Kessler, and because I believe that the

bar owner’s testimony was sufficient to authenticate the videotape, I dissent.

{¶44} Generally, motions in limine are preliminary only, and any definitive

evidentiary ruling needs to await trial. See State v. Edwards, 107 Ohio St.3d 169,

14 OHIO FIRST DISTRICT COURT OF APPEALS

2005-Ohio-6180, 837 N.E.2d 752, ¶ 17. In the normal course, a court might give a

preliminary ruling on how it might decide any evidentiary issue but would inform

counsel that any objection would need to be renewed during trial when the evidence

was offered, thus giving the court an opportunity to view the evidence in context, to

consider it along with all the other evidence, and to make a final determination. Id.

(trial court deciding a motion in limine “is at liberty to change its ruling on the

disputed evidence in its actual context at trial”). That was not done here, and the state

has taken an appeal, arguing that the court’s rulings were final appealable orders

rather than preliminary rulings.

{¶45} I agree with the majority that State v. Thyot, 2018-Ohio-644, 105

N.E.3d 1260 (1st Dist.), allows appeals of rulings on motions in limine if they are the

functional equivalent of the granting of a motion to suppress. See State v. Davidson,

17 Ohio St.3d 132, 135, 477 N.E.2d 1141 (1985) (trial court’s order granting defendant’s

motion in limine was a final appealable order because it rendered the state’s proof “so

weak in its entirety that it destroyed any reasonable possibility of effective

prosecution.”). And because the court below seemed to make a definitive ruling rather

than a preliminary one, I reluctantly agree that we can review it. I caution, however,

that this should be a rare occurrence. Motions in limine are preliminary for a reason,

and we should generally treat them as such. And, I agree with the majority that under

Thyot, we can review these rulings as we would a ruling on a motion to suppress.

Procedural and Factual Background

{¶46} Before I review the merits of the trial court’s rulings, a discussion of the

procedural posture of the case helps put the rulings in context. As the majority noted,

Sheckles was indicted in January 2020 and the case was scheduled for a bench trial on

15 OHIO FIRST DISTRICT COURT OF APPEALS

May 12, 2022, when the state first requested a continuance. As the majority points

out, at the May 25 trial date, the court expressed irritation at having to decide issues

relating to Kessler’s testimony and video authentication just prior to trial, going so far

as to accuse the prosecutor of having acted in bad faith. To be fair, though, none of

the delays during the two years and four months that the case was pending prior to the

first trial setting on May 12 were attributable to the state.

{¶47} Remember, the shooting occurred in November 2019, Sheckles was

indicted by the state in January 2020, and at some point, before the first trial setting

on May 12, 2022, he entered a plea in federal court. The case was continued multiple

times due to Sheckles’s request or his absence. Specifically, Sheckles moved to

continue the case three times between his indictment in January 2020 and his

retaining of new counsel in March 2020. It was again continued at his request to April

2, 2020, for plea or trial setting because Sheckles had, according to the court’s entry,

a “holder for APA/federal,” which makes sense given his federal prosecution arising

from the shooting at the Chalet Bar. When Sheckles failed to appear at the April

setting, the court issued a capias for his arrest.

{¶48} Then in November 2021, more than a year and a half after Sheckles had

made a court appearance in the case (and months after the trial judge assumed office),

Sheckles filed in the trial court a petition for a writ of habeas corpus ad prosequendum,

asking the trial court to order his return from the Butler County, Ohio jail where he

was detained, for prosecution on this case in Hamilton County. The trial court

continued the matter until February 16, 2022, for a hearing on Sheckles’s petition. At

that hearing, the court granted Sheckles’s petition, ordered his return to Hamilton

County, and continued the matter at Sheckles’s request until March 18, 2022.

16 OHIO FIRST DISTRICT COURT OF APPEALS

{¶49} The trial court continued the matter yet again at Sheckles’s request from

March 18 until May 12, 2022, for a bench trial. In April 2022, the state supplemented

its discovery response to notify Sheckles that Zachary Kessler, the former federal

prosecutor in Sheckles’s related federal case, was added to its witness list.

{¶50} It was at that May 12 trial setting that the state first requested a

continuance in the case to secure “a representative from the Chalet Bar where this

incident occurred to authenticate a video,” and the court rescheduled the trial for May

25.

{¶51} Then at the May 25 trial setting, defense counsel told the court that he

had just filed that morning a motion to quash the state’s subpoena of Kessler’s

testimony. The record reflects that the motion was filed at 8:38 a.m. Defense counsel

acknowledged that he had been “put on notice via supplemental discovery [in April

2022] that they intended to call [Kessler] as a witness. At our last trial setting on May

12th the State of Ohio indicated he was going to testify.”

{¶52} Although Sheckles’s written motion to quash Kessler’s subpoena was

based upon a potential violation of federal regulations, defense counsel first argued

the untimeliness of the state’s provision of the federal plea form in discovery. In

addition to his argument that the state did not provide the plea form in discovery until

a week before the rescheduled trial, defense counsel also argued that the plea form

violated federal regulations and that Kessler, not Sheckles, could face sanctions for

testifying:

In reviewing the document that we received, it’s in direct

violation of the Code of Federal Regulations. * * * Zachary Kessler is

17 OHIO FIRST DISTRICT COURT OF APPEALS

going to be subject to sanctions if he takes the stand and testifies,

particularly to the federal issues that are here.

(Emphasis added.)

{¶53} As the majority states, the prosecutor informed the court that Kessler

would testify about the federal plea agreement. The prosecutor was specific in his

explanation of the testimony:

[Kessler] took the federal plea in which Mr. Sheckles admitted to

everything that he did in the State’s case that we have charged him here

with. There’s been a full page written statement acknowledged by him

in the plea form.

Your Honor watched the video in chambers. If you recall, he

admits to racking the gun where the full round was found near the stage

and admits to the shell casing back by the back door where the shot was

fired, so it’s a full admission to all of the elements of the State’s case.

{¶54} Defense counsel disagreed on the significance of the plea form.

According to him, “None of what [the prosecutor] just described constitutes attempted

murder or felonious assault. It constitutes possession of ammunition. That’s it. That’s

what he pled to in the federal system.” However, according to the prosecutor, in

addition to the guilty plea, the form contained a statement of facts. The prosecutor

said that he would provide the court with a copy of the plea form: “It’s a rather long

document. The last page contains the statement of facts acknowledged by the

Defendant in Court.” Referring to the plea form, the trial court said, “I wish I’d had

this on Friday to review over the weekend.” But there was no reason that prior to trial

and prior to any filing of a motion by the defense, the prosecutor (or the defense)

18 OHIO FIRST DISTRICT COURT OF APPEALS

would have provided trial evidence to the court. Remember, the motion to quash was

just filed on the morning of trial.

{¶55} Despite all the discussion about whether Kessler had a Touhy letter, the

court declared that it could not proceed “until I get that letter.” Remember, the trial

had not yet started. The state may have planned on presenting testimony of the

shooting victim, witnesses from the Chalet Bar, first responders, physicians, and

investigators before it planned to call Kessler to testify about Sheckles’s plea in the

related federal case. The state’s presentation of evidence may have taken a day or more

before it called Kessler. But the court, before trial started and while it was considering

Sheckles’s motion to quash Kessler’s subpoena, required to see the Touhy letter. The

court relied on defense counsel’s assertion that Kessler’s testimony would result in a

“direct violation of” federal regulations and that Kessler, not Sheckles, “is going to be

subject to sanctions if he takes the stand and testifies, particularly to the federal issues

that are here.” Then defense counsel seemed to acknowledge that there were other

areas that Kessler could testify about, that would not require a Touhy letter, when he

stated, “But there are also state issues, that if the Court let’s [sic] him testify we can

get into later on.”

{¶56} Despite defense counsel’s indication that Kessler could testify about

“state issues,” the court was not convinced by the prosecutor’s explanation that Kessler

could “testify in part without the letter.” The court wanted “definites,” saying that “we

might as well go all the way and we’ll discuss whether [Sheckles] is going to file a

Motion in Limine to exclude [Kessler’s] testimony.” The state had not yet called

Kessler as a witness at trial, but the trial court declared prior to trial that Kessler could

not testify without the Touhy letter: “Right now he can’t testify until he gets the letter.”

19 OHIO FIRST DISTRICT COURT OF APPEALS

{¶57} Then the court informed defense counsel that, “[u]nfortunately,” while

Sheckles had no standing to move to quash the subpoena, “[h]e can file a Motion in

Limine so we don’t hear [Kessler’s] testimony.” The proceedings were paused, and at

9:33 a.m., defense counsel filed the first of his two motions in limine to prevent Kessler

from testifying. When the proceedings resumed and the prosecutor declined the

court’s invitation to file a written response to the just-filed defense motion, the court

seemed frustrated again with the prosecutor and defense counsel:

You guys are filing motions on the day of trial so I’m just following the

procedures. He filed it today. I’m giving you the opportunity to file a

response. If you don’t want that opportunity, just say, no, I don’t want

it.

{¶58} Though the prosecutor had just then received the motion in limine

regarding Kessler’s testimony, he said he was prepared to respond orally at that time.

{¶59} Then the discussion turned to authentication of the video. In response

to defense counsel’s objections, the prosecutor replied that defense counsel knew that

the state had the raw footage, that it was in the state’s discovery response, and that

“there’s hours of raw footage.” According to the state’s discovery response, it provided

“disclosure and inspection of the following information by the Defendant pursuant to

[Crim.R.] 16(B),” and listed “Surveillance videos from ‘Chalet’ nightclub.” The

prosecutor indicated that defense counsel had not contacted him to request to inspect

the videos or provided any computer discs for the state to make copies for him. The

prosecutor said that the compilation video was admissible as a summary of

voluminous recordings under the Ohio Rule of Evidence.

{¶60} After some discussion of the video authentication, the court said:

20 OHIO FIRST DISTRICT COURT OF APPEALS

I don’t know what I’m going to permit at this point. I’m kind of

irritated that all of these are being filed and brought to my attention the

day of trial when we have had, I don’t know how many years to develop

this case. Before I even took the bench you guys could have had all of

this taken care of. Now you’re just throwing stuff to me on the date of

trial, which is very irritating. And I think it’s bad faith on the

prosecution not to have all this to you before the day of trial.

And I’m just putting that on the record because you know where

I’m going with this.

Replying for himself and for defense counsel, the prosecutor said, “In both of our

defense, this thing was for a couple of years on a plea trac[k].”

{¶61} The proceedings were paused again. The record reflects that defense

counsel filed a second motion in limine to exclude Kessler’s testimony at 10:56 a.m,

asserting that Kessler was prevented from testifying under the Ohio Rules of

Professional Conduct. When the proceedings resumed, however, the court addressed

only the first motion in limine, noted that nearly three hours had passed, and wanted

to know, “Do I have that [Touhy] letter?”

{¶62} Kessler explained that Brandi Stewart, a federal prosecutor, sent the

Touhy letter to him and to the prosecutor’s office, stating “so that I know the extent to

which the Touhy letter authorization is granted with respect to the testimony that I

can be expected to give today.” When Kessler was asked if he had a copy of the Touhy

letter, he said he had the email on his phone. The prosecutor asked again, “You have

it on your phone?,” and Kessler replied, “I do as far as I know,” and the prosecutor

21 OHIO FIRST DISTRICT COURT OF APPEALS

offered to give the court the phone. Defense counsel argued, however, “They should

have had that [Touhy] letter prior to supplementing discovery and let us know that

Mr. Kessler intended to testify.” The court confirmed with defense counsel that, in

addition to his Touhy argument, he was arguing that the state had failed to provide

the federal plea form in discovery in a timely manner: “Not only barring [Kessler’s]

testimony, but there was a document that they’re going to present that was not given

to you until Friday; is that correct?”

{¶63} The prosecutor argued in response:

Your Honor, [defense counsel] has known about this all along.

The Defendant pled himself over a year ago. [Defense counsel] has

known about this all along. There’s no ambush here, no surprise.

There’s no prejudice. He’s got the entry. He’s had it for several days

now. And under Lakeland, the Court should do nothing more than

continue the case for him to review it.

No doubt the prosecutor was referring to the Supreme Court’s decision in Lakewood

v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), which held that a trial court

must impose the least severe sanction consistent with the rules of discovery for a

discovery violation. And no doubt Sheckles’s federal plea could not have come as a

surprise to Sheckles, since it was his own plea.

{¶64} The trial court responded, “Motion to exclude Mr. Kessler’s testimony

and the document presented by Mr. Kessler will be granted.”

Kessler Testimony

{¶65} The trial court granted Sheckles’s motion in limine to exclude Kessler’s

testimony, including his testimony about Sheckles’s plea. A motion in limine is a

22 OHIO FIRST DISTRICT COURT OF APPEALS

request that the court exclude evidence or witness testimony which the movant

believes to be improper. Columbus v. Burgess, 10th Dist. Franklin No. 19AP-392,

2021 Ohio App. LEXIS 2154, 7 (June 29, 2021); State v. Winston, 71 Ohio App.3d 154,

158, 593 N.E.2d 308 (2d Dist.1991). At the hearing on a motion in limine, the burden

of proof is on the movant who seeks to exclude the evidence. State v. McCormick, 5th

Dist. Stark No. 2000CA00204, 2001 Ohio App. LEXIS 430, 9 (Feb. 5, 2001). In this

case, though, rather than put the burden of proof on Sheckles, the movant seeking to

exclude Kessler’s testimony and the federal plea form, the trial court improperly

shifted the burden to the state to prove, prior to trial, that the evidence should not be

excluded. This backward approach contributed to the trial court’s erroneous ruling.

{¶66} The trial court in essence ruled that it would not let Kessler testify unless

the state produced a Touhy letter prior to trial. I would hold that this was error.

{¶67} To exclude a witness’s testimony, there must be an evidentiary basis to

do so. So we start with the Ohio Rules of Evidence. I find nothing in the rules that

would preclude Kessler from testifying.

{¶68} In general, every person is competent to be a witness unless the rules

provide otherwise. See Evid.R. 601(A). Under Evid.R. 601(B), for example, a person

is disqualified to testify under certain circumstances, none of which applied in this

case. Specifically, Evid.R. 601(B) disqualifies a witness who is incapable of expressing

himself or herself or of understanding the duty to tell the truth, and in certain

circumstances, a spouse testifying against the other spouse, an officer enforcing traffic

laws, or an expert in a medical claim. Sheckles raised no challenge below or on appeal

to Kessler’s competency to testify.

23 OHIO FIRST DISTRICT COURT OF APPEALS

{¶69} The Rules of Evidence and Ohio law also recognize some limited

privileges that can be asserted to prevent a witness from testifying. The privilege

belongs to the person who possesses it, and not someone else. Here, if any “privilege”

existed that could be invoked, it was Kessler who had the ability to invoke the privilege,

not Sheckles, and Kessler made no such claim of privilege.

{¶70} Even if we were to consider that Kessler properly invoked a privilege

against self-incrimination or otherwise, under Evid.R. 501, the privilege of a witness

is “governed by statute enacted by the General Assembly or by principles of common

law as interpreted by the courts of this state in the light of reason and experience.” To

the extent that the federal regulations cited by Sheckles conferred upon the

Department of Justice (“Department”) the privilege of nondisclosure, the privilege was

the Department’s to waive, and the burden was on Sheckles to prove that the

Department did not waive its privilege (or that Kessler did not waive his privilege

against self-incrimination). Sheckles, though, failed to carry his burden.

{¶71} In United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95

L.Ed. 417 (1951), an employee of the Department of Justice refused to obey a subpoena

duces tecum ordering production of papers of the Department, based upon a

regulation issued by the Attorney General. Touhy at 463. The trial court found the

employee in contempt of court for refusing to produce the subpoenaed records. Id. at

465. The Supreme Court affirmed the reversal of the trial court’s judgment and upheld

the validity of a federal regulation that conferred upon the Department of Justice the

privilege of nondisclosure unless there had been a waiver of the privilege by the

Attorney General. Id. at 465, 470. Because the Department employee had not been

questioned on his willingness to submit the subpoenaed material to the court as to its

24 OHIO FIRST DISTRICT COURT OF APPEALS

materiality and whether it should be disclosed, the Supreme Court did not reach the

issue of how far the Department did or could waive any claimed privilege. Id. at 468.

{¶72} Here, the privilege of nondisclosure belonged to the Department of

Justice. See id. at 465. Kessler did not assert the privilege on behalf of the

Department—on the contrary, it is absolutely clear from the record that he was willing

and able to testify. But the trial court refused to hear him.

{¶73} Moreover, the burden of showing that testimony or evidence ought to

be excluded under a claimed privilege is on the party seeking to exclude it. See State

v. Brunson, Slip Opinion No. 2022-Ohio-4299, ¶ 49 (attorney-client privilege);

Waldmann v. Waldmann, 48 Ohio St.2d 176, 178, 358 N.E.2d 521 (1976) (attorney-

client privilege); Triplett v. Univ. Hosps. Cleveland Med. Ctr., 8th Dist. Cuyahoga No.

111271, 2022-Ohio-3553, ¶ 12 (party claiming peer-review-committee privilege must

establish existence of committee that meets statutory definition and show that records

are within scope of committee’s review). Here, though, the trial court put the burden

on the state to prove that the Department’s nondisclosure privilege was not waived,

instead of putting the burden on Sheckles, the party seeking to exclude the

Department employee’s testimony.

{¶74} The federal regulations cited by Sheckles in his motion in limine (and

quoted by the majority) generally prohibit employees or former employees of the

Department of Justice from testifying in a case in which the United States is not a

party, without prior approval of the Department. See, e.g., 28 C.F.R. 16.22(A).

However, Sheckles cited no regulation or other authority for the proposition that the

Touhy letter or authorization by the Department must be provided to the defense or

to the trial court prior to the federal employee’s testimony. And the majority cites no

25 OHIO FIRST DISTRICT COURT OF APPEALS

legal authority for its holding that Kessler’s testimony was properly excluded because

the Touhy letter was not produced.

{¶75} Instead, the majority asserts, “Without citing any legal authority, the

state claims that the federal regulation does not prohibit a witness from testifying,

rather, it merely subjects an employee to possible consequences from the Department

of Justice if the employee testifies without prior authorization.” The majority

concludes that “the state did not raise this argument in the trial court and therefore

has forfeited the issue for appellate review.” But Sheckles himself put the issue

squarely before the trial court when he argued, “Zachary Kessler is going to be subject

to sanctions if he takes the stand and testifies.” So I disagree that the state cannot

raise the same argument on appeal because the issue was obviously considered by, and

accepted without question by, the trial court. Surely, the potential for Kessler’s

sanctioning was the only reason that the court excluded his testimony because

Sheckles never once said how his rights to a fair trial would be impacted by Kessler’s

testifying without a Touhy letter.

{¶76} Under 28 C.F.R. 16.22(c), a party seeking oral testimony in a case in

which the United States is not a party must furnish to the United States Attorney an

affidavit or statement setting forth a summary of the testimony sought and its

relevance to the proceeding. The requirement for such an affidavit or statement exists

for oral testimony but does not apply to demands for material or information in the

files of the Department of Justice or material acquired as part of the performance of

that person’s official duties. See 28 C.F.R. 16.22(a). Instead, when information other

than oral testimony is sought by a demand, the responsible United States Attorney

must request a summary of the information sought and its relevance to the proceeding.

26 OHIO FIRST DISTRICT COURT OF APPEALS

See 28 C.F.R. 16.22(d). The regulations say nothing about the admissibility at trial of

the testimony or materials without prior authorization, and they do not say that

authorization must be provided to a trial court or to a party that did not issue the

demand or subpoena to the Department.

{¶77} We must keep in mind that the defense did not raise the issue of the

Touhy letter until the morning of trial on May 25 when it filed the motion to quash,

which triggered the scramble for the letter that morning. Nothing cited by Sheckles

indicated that the trial court was required or even entitled to know if the United States

Attorney had approved Kessler’s oral testimony and document production. If, as

defense counsel argued, Kessler would face sanctions, that concern would be Kessler’s

alone and not the concern of Sheckles or the trial court (especially where Kessler

expressed his willingness and ability to testify). Nonetheless, the state and Kessler still

made the effort to get the letter emailed to the prosecutor’s office and to Kessler, but

the court had no interest in seeing if Kessler had the authorization on his phone. And

Sheckles failed to demonstrate that the Department of Justice did not waive any

privilege of nondisclosure provided by its regulations. The representations to the

court by Kessler and the prosecutor certainly indicated otherwise. The prosecutor

began to put on the record that he had the Touhy letter, but the court interrupted to

ask, “Where is it?” The prosecutor replied, “It was here in the courtroom when you

asked for it.” The prosecutor also said, “Mr. Kessler had it on his phone and had it

here and was ready to go.” (Although the transcript attributes the last remark to one

made by Kessler himself, we can safely presume that the prosecutor said that and that

Kessler likely did not refer to himself as “Mr. Kessler.”)

27 OHIO FIRST DISTRICT COURT OF APPEALS

{¶78} The bottom line is that I do not think there was any legal basis for the

trial court to rule that Kessler could not testify. And the majority has cited none.

Authenticity of the Video

{¶79} In addition, I believe that the trial court erred by excluding the

compilation video on the ground that the state failed to authenticate it.

{¶80} Under Evid.R. 901(A), authentication as a condition precedent to

admissibility requires evidence sufficient to support a finding that the matter in

question is what the proponent claims. An acceptable method of authentication is

testimony by a witness with knowledge “that a matter is what it is claimed to be.” See

Evid.R. 901(B)(1). “Authentication is ‘a very low threshold, which is less demanding

than the preponderance of the evidence.’ ” State v. Patterson, 1st Dist. Hamilton No.

C-170329, 2018-Ohio-3348, ¶ 13, quoting State v. White, 4th Dist. Scioto No.

03CA2926, 2004-Ohio-6005, ¶ 61. The proponent of the evidence must demonstrate

a “reasonable likelihood” that the evidence is authentic. Thyot, 2018-Ohio-644, 105

N.E.3d 1260, at ¶ 21. In addition, “[a]ny defects in the testimony go to the weight of

the evidence, not its authenticity.” Id.

{¶81} The majority concludes that the state’s failure to proffer the video for

our review prevents us from concluding that the trial court erred in excluding it.

However, pursuant to Evid.R. 103(A)(2), error may be predicated upon a ruling

excluding evidence “where the substance of the evidence was made known to the court

by offer or was apparent from the context within which questions were asked.” While

clearly a proffer of excluded evidence would be the better practice, it is not always

required to preserve for appellate review, an evidentiary ruling alleged to be in error.

State v. Gilmore, 28 Ohio St.3d 190, 191, 503 N.E.2d 147 (1986); Ellinger v. Ho, 10th

28 OHIO FIRST DISTRICT COURT OF APPEALS

Dist. Franklin No. 08AP-1079, 2010-Ohio-553, ¶ 34. It is clear from the record that

the challenged video was a compilation video created by police from raw footage

obtained from the bar’s surveillance cameras.

{¶82} Remember that the case was continued from May 12 to May 25 so that

the prosecutor could bring in “a representative from the Chalet Bar where this incident

occurred to authenticate a video.” Then, on the morning of trial on May 25, when the

court learned that the bar owners were present to authenticate the video, defense

counsel objected on two grounds. First, he argued that their names had not been

provided in discovery. Second, he argued that the only video he had been provided

was the compilation video produced by the police, and not by the bar owners.

{¶83} The state had the bar owners present, as it indicated it would at the last

trial setting. It was not until the morning of trial on May 25 that the state found out

that Sheckles would attack, prior to trial, the authentication of the video on the ground

that police had prepared the summary video. The trial court made it clear, after the

bar owner testified, that it did not believe that her testimony was sufficient to

authenticate the video.

{¶84} When the court said, “I need the person who actually made the

compilation video to tell me how they made that video,” the prosecutor said he would

arrange to get the person to court. But in another expression of its frustration, the

court said:

I’m going to put this on the record. What is it about the State

that they think they can just dictate how the court process flows? You

don’t bring in the witnesses you need and then when you realize you do

need somebody, you say, I’ll just get a continuance and bring somebody

29 OHIO FIRST DISTRICT COURT OF APPEALS

over. No one is ever ready until the Court questions where is this

witness that I need to have this actual hearing that was scheduled for

9:00 and it is now 12:30.

{¶85} The prosecutor reminded the court that “this is a motion that was filed

at 10:00 this morning,” and the court countered, “Based on evidence you produced

shortly.” The prosecutor reiterated, “It’s our position this witness has authenticated

the video and that’s all that’s necessary.” The court said that the bar owner did not

produce the video. Things got testy again:

[PROSECUTOR]: I put her on and I have the other witness coming

because the Court wants the other witness.

THE COURT: I don’t want the other witness. If you don’t want her, I’m

fine. I don’t need any other witness. I’m fine. I can make my decision

with this one witness.

[PROSECUTOR]: I think you’re telegraphing your decision, so we would

like to bring the other witness.

THE COURT: The sole purpose was to bring in a witness to authenticate

this video and the witness here in court can’t authenticate the video. Now

I have to wait yet another, I don’t know how long, for this other person

to appear. So the Motion in Limine will be granted. The video will be

excluded.

{¶86} The majority brushes aside the state’s argument on appeal that the court

should have allowed the state to call the officer who produced the video. Incredibly,

the majority says that we can’t speculate as to whether the trial court would have

30 OHIO FIRST DISTRICT COURT OF APPEALS

allowed the state’s additional witness to testify during trial because, “[i]nstead of

proceeding to trial and attempting to authenticate the video during the trial, the state

decided to appeal.” But the trial court did not simply exclude the testimony of the

additional witness who created the compilation video—the court excluded the video

itself, which the prosecutor described as a “critical piece[] of evidence.” In other

words, the court suppressed the video, so obviously the state could not have, as the

majority suggests, tried to authenticate the video during trial. The video was excluded

from evidence before the trial even started.

{¶87} Certainly, the state could not risk proceeding to trial without the video

and potentially facing Sheckles’s acquittal for insufficient evidence. The Double

Jeopardy Clause “protects against a second prosecution for the same offense after

acquittal.” Bravo-Fernandez v. United States, 580 U.S. 5, 9, 137 S.Ct. 352, 196

L.Ed.2d 242 (2016), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.

2072, 23 L.Ed.2d 656 (1969). And “[t]he Government ‘cannot secure appellate review’

of an acquittal, * * * even one ‘based upon an egregiously erroneous foundation.’ ” Id.

at 10, quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717

(1978). The reason we allow the state to appeal the granting of a pretrial motion in

limine excluding evidence is because it “has rendered the state’s proof with respect to

the pending charge so weak in its entirety that any reasonable possibility of effective

prosecution has been destroyed.” Crim.R. 12(K)(2); Davidson, 17 Ohio St.3d at 135,

477 N.E.2d 1141.

{¶88} The majority says that the bar owner did not testify about the operation

or reliability of the recording system, and that she had not reviewed or downloaded

the video. I disagree. In addition to testifying about the bar’s multiple cameras that

31 OHIO FIRST DISTRICT COURT OF APPEALS

record at various angles, she testified that she did not download the video because the

police took the hard drive that contained all of the raw footage from that night.

Obviously, she would not have had to “download” it if it was on the drive already. In

addition, she clearly testified that she had reviewed the video. I include nearly all of

the bar owner’s testimony because in my mind it establishes the very low burden of

authentication:

[DEFENSE COUNSEL]: Ma’am, do you recognize this video?

[THE WITNESS]: I do.

Q. What is it a video of?

A. This is our front patio, the entrance of the bar.

Q. Okay. I’m going to press Play[.] * * * Okay, ma’am, when you

downloaded the camera footage do you have multiple cameras in your

bar?

A. Yes.

Q. Okay. Each camera records a different angle?

Q. And you personally don’t cut and splice those videos together, do

you?

A. No.

Q. So if an incident were to happen at your bar and the police come

you download that video, correct?

A. I don’t. They actually came and just took the equipment.

Q. Okay. So the police on November the 29th came to your bar?

A. Detectives, police, yes, somebody did.

32 OHIO FIRST DISTRICT COURT OF APPEALS

Q. And they collected the equipment?

A. Umm-hmm.

Q. Is that equipment, is that like a hard drive?

A. It is a hard drive.

Q. And the hard drive contains all the raw footage from this night?

THE COURT: I just have one question. This is the determining

factor. Have you ever seen this compilation video?

THE WITNESS: This?

THE COURT: Yes.

THE WITNESS: Like put the whole video, no.

THE COURT: That’s all I need to know. You can’t say that you’ve

seen this whole video?

THE WITNESS: The whole video or –

THE COURT: This compilation the was it’s presented in court

today.

THE WITNESS: No.

[PROSECUTOR]: You have a video of this on your phone?

Q. And is that the outside of your bar?

A. Yes, it is.

Q. On that date?

Q. And you had occasion to watch this a few minutes ago?

33 OHIO FIRST DISTRICT COURT OF APPEALS

Q. Did you watch the whole thing?

Q. Did it show the inside of your bar on that date in time?

A. Yes, it did.

Q. And it showed a couple different scenes from inside the bar, four

different cameras?

Q. And were those authentic videos of your bar and your recording

system from that night?

A. They were.

{¶89} I believe that the bar owner’s testimony easily crossed the very low

threshold to authenticate the video under the silent-witness theory because the

evidence showed the reliability of the camera system that produced the evidence. In

a similar case, State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023,

overruled in part on other grounds, State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-

634, 149 N.E.3d 475, ¶ 35, a property manager testified that he maintained 140

surveillance cameras on the property at an apartment complex. Pickens at ¶ 141. The

state presented a video taken outside the defendant’s apartment near the time of the

offense, as well as a “surveillance video that spliced together different surveillance

videos” from the property. Id. at ¶ 142-143. As to the spliced videos, the property

manager testified that he provided multiple surveillance videos to the police and that

the police spliced together multiple clips into a single disc “in an effort to make it better

for a viewing audience.” Id. at ¶ 144. The manager reviewed the spliced videos and

34 OHIO FIRST DISTRICT COURT OF APPEALS

testified that it represented a true and accurate reflection of the various videos that he

had provided to the police.

{¶90} The Supreme Court held that the spliced videos were admissible under

the “silent witness” theory because the manager testified from personal knowledge

about the installation of the surveillance system, the positioning of the cameras, and

the method used for recording the videos. Id. at ¶ 151. The court held that “[n]o expert

was required to substantiate the reliability of the surveillance system[,]” and that the

spliced videos were properly authenticated where the state adequately showed the

reliability of the surveillance system and the videos it produced. Id.

{¶91} We have similar authentication testimony in this case. The bar owner

testified from personal knowledge that the raw footage from the bar’s multiple

cameras was contained on the hard drive collected by police, that she watched the

entire compilation video which showed different scenes from different cameras in the

bar, and that they were authentic videos of her bar and her recording system from the

night of the offense. This testimony easily met the low threshold for authentication.

{¶92} The trial court, though, did not think so:

She has not authenticated the video. It’s a video of a video. But

she did not produce this video. Her equipment did not produce this

video. It’s a compilation of raw footage that she provided from her hard

drive, so she did not produce this video. She doesn’t know how it was

cut or spliced or put together.

{¶93} Even though the trial court seemed satisfied that the bar’s original raw

footage from its hard drive met the authenticity test, the court excluded the

compilation video created from that footage because it was “a video of a video.”

35 OHIO FIRST DISTRICT COURT OF APPEALS

However, Evid.R. 1006 allows the contents of voluminous recordings “which cannot

conveniently be examined in court” to be presented in summary form. For a summary

to be admissible, the “originals, or duplicates, shall be made available for examination

or copying, or both, by other parties at a reasonable time and place.” There was no

allegation that the hours-long raw footage was altered in any way other than being

reduced to a compilation for viewing purposes. And the prosecutor represented that

the raw video footage was available for examination. The trial court erred by excluding

the video prior to trial.

{¶94} I would reverse the judgments of the trial court and remand this cause

for further proceedings. Respectfully, I dissent.

Please note: The court has recorded its own entry this date.