STATE OF OHIO, Plaintiff-Appellant, vs. ERNEST L. THYOT, Defendant-Appellee.
APPEAL NOS. C-170178, C-170179
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 21, 2018
2018-Ohio-644
Criminal Appeals From: Hamilton County Municipal Court. Judgment Appealed From Is: Reversed and Cause Remanded. Trial No. C-16TRC-31463A/B.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellee.
{¶1} Plaintiff-appellant, state of Ohio, appeals from the decision of the Hamilton County Municipal Court granting the motion in limine filed by defendant-appellee Ernest L. Thyot. We find merit in the state‘s sole assignment of error, and therefore, we reverse the trial court‘s judgment and remand the cause for further proceedings.
I. Facts and Procedure
{¶2} The record shows that Thyot was charged with operating a motor vehicle while under the influence of alcohol under
{¶3} At a hearing on the motion, the state presented the testimony of Tom Tegenkamp, a regional manager for Thornton‘s Oil Co. He supervised eight stores, including store 560, located at 12185 Princeton Pike. He was familiar with that store because he had helped open it about a year prior to the hearing.
{¶4} Tegenkamp was also familiar with the store‘s surveillance system, which he had used in the past for “various investigations and that sort of thing.” He testified that it was a “continuous recording closed-circuit surveillance system,” meaning that there were 12 to 16 cameras at each store, which were recording “24 hours a day, seven days a week.” Tegenkamp was one of three people who could access the system, and the videos were made in the ordinary course of business.
{¶5} The system stored all recordings on the hard drive, which was kept for 90 days. The hard drives were stored in the office at the site. If a recording had to be saved longer than 90 days, it was burned onto a DVD or stored on a flash drive.
{¶6} Tegenkamp identified a frame of a video on a DVD as a “video of our fueling areas in front of * * * Store 560.” He also testified that the video was taken on July 4, 2016, at 9:00 in the evening. He knew the date and time because it was “superimposed on the bottom of the picture, right
{¶7} Tegenkamp acknowledged that he was not present when the video was recorded, and that he had no personal knowledge of the events that appeared in the video. He was also not the individual who had burned the video onto a DVD.
{¶8} Following the hearing, the trial court granted Thyot‘s motion in limine. The court noted that the state had to prove that the video tape “fairly, truly and accurately” depicted what it purported to depict and that the “condition of the video has not been altered, edited, or distorted.” It found:
- The witness was not the custodian of the video DVD[.]
- The witness did not have custody or control over the burned copy[.]
- The witness had no personal knowledge of video DVD equipment reliability to record[,] burn or copy[.]
- The wit[ness] was not [at] the scene of the videotaping or burning of copy[.]
- The wit[ness] did not prepare the video DVD for court[.]
- The wit[ness] cannot testify that the video DVD fairly and accurately depicted what the proponent said it did[.]
{¶9} Based on those findings, the court held that the video was not adequately authenticated. The state has filed an interlocutory appeal from the trial court‘s judgment. Before we address the state‘s assignment of error, we must address Thyot‘s argument that the state has no right to appeal from the denial of the motion in limine.
II. The State‘s Right to Appeal
{¶10}
{¶11} As a general rule, rulings on motions in limine are interlocutory and are not final, appealable orders. State v. Grubb, 28 Ohio St.3d 199, 201-202, 503 N.E.2d 142 (1986); Hatter at ¶ 6. But, the Ohio Supreme Court has stated,
Any motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, renders the state‘s proof with respect to the pending charge so weak in its entirety that any reasonable probability of effective prosecution has been destroyed, is, in effect, a motion to suppress. The granting of such a motion is a final order and may be appealed pursuant to
R.C. 2945.67 andCrim.R. 12(J) .
{¶12} In Hatter, the defendant filed a motion in limine, contending that statements
{¶13} The same reasoning applies in this case. Though the trial court did not say that it was recasting the motion in limine as a motion to suppress, this court can do so. Thus, the ruling on the motion in limine was a final order, which the state was permitted to appeal under
{¶14} The state complied with the requirements of
III. Merits of the State‘s Appeal
{¶15} We turn now to the merits of the state‘s appeal. In its sole assignment of error, the state contends that the trial court erred in granting Thyot‘s motion in limine. It argues that it adequately authenticated the video. This assignment of error is well taken.
A. Standard of Review
{¶16} Generally, the standard of review for evidentiary motions, such as motions in limine, is abuse of discretion. State v. Garrett, 1st Dist. Hamilton No. C-090592, 2010-Ohio-5431, ¶ 25. But other appellate courts have held that when a motion in limine is the functional equivalent of a motion to suppress, courts should use the standard of review applicable to a motion to suppress. See State v. Hignite, 12th Dist. Warren No. CA2015-07-063, 2015-Ohio-5204, ¶ 12; State v. Johnston, 2d Dist. Montgomery No. 26026, 2015-Ohio-450, ¶ 27; State v. Greaves, 2012-Ohio-1989, 971 N.E.2d 987, ¶ 8-11 (6th Dist.). We agree with the reasoning of those courts, and we apply that standard of review in this case.
{¶17} 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; State v. Sweeten, 1st Dist. Hamilton No. C-150583, 2016-Ohio-5828, ¶ 8.
B. Authentication
{¶18}
{¶19} Photographic evidence, including videotapes, can be admitted under two theories. Under the pictorial-testimony theory, evidence is admissible “when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on the witness’ personal observation.” Midland Steel Prod. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 129-130, 573 N.E.2d 98 (1991); State v. Hoffmeyer, 9th Dist. Summit No. 27065, 2014-Ohio-3578, ¶ 19. Under the silent-witness theory, photographic evidence is a “silent witness,” which “speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness.” Midland Steel at 129-130; State v. Maiolo, 2d Dist. Clark No. 2015-CA-15, 2015-Ohio-4788, ¶ 11. Under that theory, evidence is admissible “upon a sufficient showing of the reliability of the process or system that produced the evidence.” Midland Steel at 130; Hoffmeyer at ¶ 19. No expert testimony is required to substantiate the reliability of the surveillance system. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 151; Midland Steel at 130.
{¶20} The video was admissible under the silent-witness theory. Tegenkamp testified that the video was a recording of what was taking place outside of Thornton‘s store 560, with which he was familiar. He testified about how the system worked, and the way it recorded and stored video in the ordinary course of business. He further testified that it was a problem-free system that continuously recorded what occurred in the area outside the Thornton store. While he had no personal knowledge of the contents of the video and was not present when it was burned to the DVD, those facts are not dispositive. He knew the system and the storage method for the recordings, and he had used the system in previous investigations.
{¶21} This evidence was sufficient to authenticate the video. The threshold for authentication is low and does not require conclusive proof of authenticity. State v. Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 65. Instead, the proponent has the burden to demonstrate a “reasonable likelihood” that the evidence is authentic. Hoffmeyer at ¶ 18; Freeze at ¶ 65. Any defects in the testimony go to the weight of the evidence, not its authenticity.
{¶22} Thyot and the trial court took issue with the fact that Tegenkamp was not the custodian of the video. But the video was admissible into evidence as a business record under
be able to vouch from personal knowledge of the record-keeping system that such records were kept in the regular course of business.” Hirsch at 312, quoting Davis at 342. Tegenkamp met these requirements.
{¶23} Under the circumstances, we hold that the state adequately authenticated the video. The video was admissible into evidence, and the trial court erred in granting Thyot‘s motion in limine. We sustain the state‘s assignment of error, reverse the trial court‘s judgment, and remand the cause to the trial court for further proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
ZAYAS and MILLER, JJ., concur.