STATE OF OHIO, Plaintiff-Appellee, v. THOMAS J. SPENCER, Defendant-Appellant.
Case No. 19CA6
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
RELEASED: 09/11/2019
[Cite as State v. Spencer, 2019-Ohio-3800.]
Hess, J.
DECISION AND JUDGMENT ENTRY
Jerry L. McHenry, Esq., Pickerington, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Justin B. Benedict, Assistant Pickaway County Prosecutor, Circleville, Ohio, for appellee.
Hess, J.
{¶1} Thomas Spencer appeals his convictions for two counts of forgery in violation
{¶2} Spencer also contends that the trial court violated his right to confrontation when it admitted hearsay evidence that the checks had been forged and that trial counsel rendered ineffective assistance by not objecting to this evidence. Even if we
I. FACTS
{¶3} The Pickaway County grand jury indicted Spencer on two counts of forgery and two counts of receiving stolen property, and he pleaded not guilty. At trial, Carol Smiley, Assistant Vice President of Accounting at The Savings Bank, testified that a customer notified the bank that checks had been paid on its account that the customer had not issued. The bank closed the account and contacted police.
{¶4} Detective Jon Farrelly of the Circleville Police Department testified that he received an email from Connie Campbell, a Savings Bank employee, about “false activity at the bank” and investigated the matter. Campbell gave him copies of two checks that appeared to be drawn on the account of Custom Maintenance Service, Inc., but had not been issued by the business. The checks were dated August 10, 2018, and the check numbers were sequential. Each check was payable to Spencer in the amount of $879.14. The back of the first check had a handwritten endorsement and printed information indicating a transaction had occurred on August 17, 2018, at 12:20:52 p.m. The back of the second check had a handwritten endorsement, a handwritten driver‘s license number, and printed information indicating a transaction had occurred on August 17, 2018, at 1:10:59 p.m. Detective Farrelly ran the driver‘s license number through OLEG and learned that it belonged to Spencer. Detective Farrelly also contacted Custom Maintenance, which did not recognize Spencer‘s name.
{¶6} Sheila Sagraves testified that she had gone to school with Spencer. They later reconnected, and he asked if she “wanted to make a little bit of money cashing checks.” She did and gave Spencer her “I.D. information.” One day in August 2018, Sagraves, Jeremiah Palladino (her boyfriend), Spencer, and Michelle Fernan met with a man who went by the name “Black.” They went to The Savings Bank in Ashville, where Black handed out pre-printed checks. Spencer and Palladino, who Sagraves identified as the other man in one of the photographs, went into the bank together. Sagraves and Fernan also went into the bank together. When they returned to the car, they gave the
{¶7} Spencer testified that he and his wife, Fernan, agreed to perform work for a construction company whose name Spencer could not recall. They received their first paycheck on July 17, 2018, and two men from the construction company took them to cash it. The men told Spencer they needed to “hold the money,” and because Spencer saw they had a gun, he gave the money to them. The men explained that they needed Spencer to cash checks from other companies for work that he was going to perform. Spencer claimed that he was forced to cash more checks for about a month.
{¶8} The trial court dismissed the receiving stolen property counts. The jury rejected Spencer‘s affirmative defense of duress and found him guilty on the forgery counts. The court sentenced Spencer to 12 months in prison on each forgery count and ordered him to serve those sentences consecutive to one another for an aggregate sentence of 24 months.
II. ASSIGNMENTS OF ERROR
{¶9} Spencer assigns the following errors for our review:
The Appellant was denied his right to a fair trial, due process of law, his right to confront witnesses and equal protection of the law when Detective Farrelly and Bank Vice President Smiley testified as to hearsay evidence as to what another person(s) told them. This was in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article 1, Sec. 10 of the Ohio Constitution. - Evidence of a videotape and still photographs from that tape, were not properly authenticated by the witness Detective Farrelly and were improperly admitted into evidence. As a result, the Appellant was denied his right to confront and cross-examine evidence designed to prove his guilt. He was denied his right to have only competent evidence adduced against him. He was denied a fair trial. This was a denial of his rights pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article I[,] Section 10 of the Ohio Constitution.
- Trial counsel rendered ineffective assistance of counsel to the Appellant, by failing to object to the evidence of the videotapes and the still photographs, and subsequently their admission into evidence. This was a denial of Appellant‘s rights to counsel, a fair trial, due process of law and equal protection of the law as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.
For ease of discussion, we address the assignments of error out of order.
III. LAW AND ANALYSIS
A. Authentication
{¶10} In the second assignment of error, Spencer contends that the trial court erred when it admitted the surveillance footage and photographs. He asserts that the state laid no foundation to establish the authenticity of this evidence, noting that Detective Farrelly did not operate the cameras at the banks or create the photographs from the surveillance footage. In the third assignment of error, Spencer contends in part that trial counsel rendered ineffective assistance by not objecting to the surveillance footage and photographs.
{¶12} “To establish plain error, a defendant must show that (1) there was an error or deviation from a legal rule, (2) the error was plain and obvious, and (3) the error affected the outcome of the trial.” State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 26. The defendant must “demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “Notice of plain error under
{¶13} To prevail on an ineffective assistance claim, a defendant must show: “(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶14} “Before a trial court may admit evidence,
{¶15} Two methods for authenticating photographic evidence are the pictorial testimony theory and the silent witness theory. Midland Steel Prods. Co. v. Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers of Am., Local 486, 61 Ohio St.3d 121, 129-130, 573 N.E.2d 98 (1991). Under the pictorial evidence theory, “the photographic evidence is merely illustrative of a witness’ testimony and it only
{¶16} Pursuant to the silent witness theory, “‘the photographic evidence is a “silent witness” which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness.‘” Id. at 130, quoting Fisher at 6. The “photographic evidence may be admitted upon a sufficient showing of the reliability of the process or system that produced the evidence.” Id. at paragraph three of the syllabus. Testimony from an individual with personal knowledge of the surveillance system‘s recording process is not required. Vermillion at ¶ 17, 20.
{¶17} The state satisfied the low threshold requirement for authentication under the silent witness theory. Detective Farrelly testified that he obtained the surveillance footage and photographs from a bank employee. The footage depicts tellers processing two checks for Spencer on the same date that appears in the transactional information printed on the back of the checks and at nearly the exact time. The teller in the Circleville footage appears to write something after Spencer gives the teller his check and driver‘s license, which is consistent with the fact that his driver‘s license number was handwritten on the check with a 1:10:59 p.m. transaction time. The surveillance footage is also consistent with Sagraves’ testimony about the check cashing scheme. The Ashville footage depicts Spencer and Palladino entering the bank together and
{¶18} The trial court did not err when it admitted the footage and photographs, and counsel‘s failure to make a futile objection did not constitute deficient performance. State v. Cordor, 2012-Ohio-1995, 969 N.E.2d 787, ¶ 29 (4th Dist.). Accordingly, we overrule the second assignment of error, and we overrule the third assignment of error to the extent it asserts trial counsel rendered ineffective assistance in connection with the admission of the surveillance footage and photographs.
B. Hearsay
{¶19} In the first assignment of error, Spencer contends the trial court violated his right to confrontation when it admitted hearsay evidence. Specifically, he asserts that Detective Farrelly and Smiley testified about statements others at The Savings Bank or Custom Maintenance made about the checks being forged without any showing by the state that the declarants were unavailable to testify. In the third assignment of error, Spencer argues in part that trial counsel rendered ineffective assistance by not objecting to this evidence. We set forth the standards for plain error review and ineffective assistance of counsel in Section III.A.
{¶20} Even if we presume error occurred, Spencer has not demonstrated a reasonable probability that it resulted in prejudice. Spencer asserts that without this evidence, he likely would have been entitled to a judgment of acquittal at the close of
{¶21} Spencer‘s argument is not well taken because even without the challenged evidence, the state still presented sufficient evidence to convict him, i.e., “viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To convict Spencer of the forgery offenses, the state had to show that he uttered, i.e., issued, published, transferred, used, put or sent into circulation, delivered, or displayed, writings he knew to have been forged with purpose to defraud or knowing that he was facilitating a fraud.
{¶22} Accordingly, we overrule the first assignment of error, and we overrule the third assignment of error to the extent it asserts that trial counsel rendered ineffective assistance in connection with the admission of hearsay evidence.
{¶23} Having overruled the assignments of error, we affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.