STATE OF OHIO, PLAINTIFF-APPELLEE, v. SHAYNA R. PERKINS, nka SHAYNA R. GONZALES, DEFENDANT-APPELLANT.
CASE NO. 13-10-36
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
June 6, 2011
[Cite as State v. Perkins, 2011-Ohio-2705.]
Appeal from Seneca County Common Pleas Court, Trial Court No. 09-CR-0280. Judgment Affirmed.
Cindy Wolph for Appellant
Derek W. DeVine and Gregory A. Taposci for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-appellant Shayna R. Perkins aka Shayna R. Gonzales (“Perkins”) brings this appeal from the judgment of the Court of Common Pleas оf Seneca County finding her guilty of complicity to aggravated trafficking in drugs and sentencing her to a mandatory sentence of four years in prison. For the reasons set forth below, the judgment is affirmed.
{¶2} On March 20, 2009, the Senеca County Drug Task Force – METRICH Enforcement Unit (“Task Force”) conducted a controlled buy of 55 ecstasy pills through the use of a confidential informant (“CI”). The CI was equipped with a recording device and the Task Force had set up video recording equipment in the area. The buy was to take place between the CI and Peter Haslinger (“Haslinger”). The cameras recorded Perkins driving a vehicle with Haslinger in it. Then Pеrkins and Haslinger exited the vehicle and approached the CI where they engaged in a conversation. The video then shows the three of them walking to a shed where they disappeared from view. Thе sale of the ecstasy was recorded only on audio tape. Perkins and Haslinger then returned to the vehicle and left. The vehicle was subsequently stopped for following too closely to other vеhicles. Perkins consented to a search of the vehicle, but no contraband was found during the search. Approximately two and a half months later, the CI was killed by law enforcement personnel in a separate criminal confrontation. Prior to
{¶3} On December 16, 2009, the Seneca County Grand Jury indicted Perkins on one cоunt of complicity to aggravated trafficking in drugs in violation of
First Assignment of Error
The trial court abused its discretion and denied [Perkins] her fundamental right to a fair triаl, and her Sixth Amendment rights to confrontation of witnesses, by permitting the State to
Second Assignment of Error
The trial court abused its discretion in finding that [Perkins] was guilty of complicity beyond a reasonable doubt. Mere presence or proximity to the alleged transaction, the “context” established by the audio and video recordings, were not sufficient to prove that [Perkins] made affirmative actions meeting the definition of “aiding” or “abetting” the crime charged.
{¶4} In the first assignment of error, Perkins alleges that the trial court erred by admitting the audio and video evidence of the drug purchase when the CI was no longer available to testify at trial. The admission of evidence is within the sound discretion of the trial court. State v. Ray, 189 Ohio App.3d 292, 2010-Ohio-2348, 938 N.E.2d 378. Howevеr, “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”
To determine whether a stаtement is “testimonial,” the court in Crawford did not precisely define the term, but listed the following examples: (1) ex parte in-court testimony or its functional equivalent, such as affidavits and prior testimony that the defendant was unable to cross-examine, or pretrial statements that declarants would reasonably expect to be used in a prosecution, (2) extra-judicial statements contained in formal testimonial materiаls such as depositions, prior testimony, or confessions, and (3) statements made under circumstances that would lead an objective witness to believe that the statement would be available for use at а later trial.
Ray, supra at ¶32. The meaning of testimonial statements was further considered by the U.S. Supreme Court in Davis v. Washington (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224.
Statements are nontestimonial when made in the course of police interrogation under circumstances оbjectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822. Finally, the Ohio Supreme Court has set forth the following test.
For Confrontation Clause purposes, a testimonial statement includes one made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” * * * In determining
whether a statement is testimonial for Confrontation Clause purposes, courts should focus on thе expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant’s expectations. This test cоnforms to Crawford and is supported by both state and federal authority. This definition also prevents trampling on other portions of hearsay law that Crawford expressly states do not implicate the right to confront witnesses.
State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶36, 855 N.E.2d 834 (citations omitted).
{¶5} In this case, Perkins argues that the trial court erred in admitting the video and audio tapes made of the drug buy because the CI was not available for cross-examination. This court has previously addressed the questiоn of whether tapes of drug purchases are testimonial evidence in State v. Stewart, 3d Dist. No. 13-08-18, 2009-Ohio-3411. In Stewart, this court held that tape recordings made of the actual drug transactions are not hearsay. Id. at ¶90. Instead, the tapes are mеrely being used to establish the context of a defendant’s statements and not to prove the truth of the matter asserted in the statements by the CI. Id. (citing State v. Sloan, 8th Dist. No. 79832, 2002-Ohio-2669; United States v. Price (1986), 792 F.2d 994; and United States v. Lemonakis (1973), 485 F.2d 941). If the statements are not testimonial in nature, then the Confrontation Clause is not implicated. The video tape of Perkins approaching the site of the drug transaction and the audio
{¶6} Perkins also raises an issue with the use of the tape of the debriefing of the CI after the purchase is complete. The debriefing tape, unlike the prior tapes occurred outside of the presence of Perkins and thus does not put her own comments into context. Thus, it would be a hearsay statement that would normally be excluded. However, in this case, the debriefing tape was played by the defense when cross-examining the State’s witness. After the tape was played, the State questioned the witness on re-direct concerning some statements made on the tape introduced by Perkins. Pursuant to the doctrine of invited error, a party may not take advantage of an error that he or she created. State v. Bey (1999), 85 Ohio St.3d 487, 709 N.E.2d 484. The doctrine of invited error precludes a defendant from introducing evidence that would normally be hearsay during cross-examination of a witness and then objecting to the use of the evidence on re-direct. State v. McCombs, 9th Dist. No. 22837, 2006-Ohio-3289, ¶13. For the reasons set forth above, the first assignment of error is overruled.
{¶7} In the second assignment of еrror, Perkins argues that the evidence was not sufficient to support the finding of guilt.
When reviewing the sufficiency of the evidence to support a criminal conviction, a court must examine the evidence аdmitted at trial to determine whether such evidence, if believed, would
convince the average juror of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after reviewing the evidenсe in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Ready (2001), 143 Ohio App.3d 748, 759, 758 N.E.2d 1203.
{¶8} Here, Perkins was charged with one count of complicity to commit aggravated trafficking of drugs with a specification that the sale occurred in the vicinity of a juvenile. The State had to prove that Perkins knowingly aided or abetted another in the sale of a controlled substance in the presence of a juvenile. The video showed that Perkins drove Haslinger to the location with the child in the rear seat of the vehicle. Perkins then walked with Haslinger around to the door of the shed. The audio tape of the sale indicates that Perkins was present and participated. Perkins described her experiences with the pills that the CI was purchasing and how the pills should be ingested. After the sale, Perkins then proceeded to leave the shed with Haslinger and the CI and drove Haslinger from the scene after which the purchased pills were hаnded over by the CI to the Task Force. Viewing this evidence in a light most favorable to the State, a rational trier of fact could have concluded that Perkins knowingly aided and abetted Haslinger in the sale оf the drugs while in the vicinity of a juvenile. Thus, the evidence is
{¶9} Having found no error prejudicial to the defendant, the judgment of the Court of Common Pleas of Seneca County is affirmed.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/jlr