[Cite as State v. Hood, 134 Ohio St.3d 595, 2012-Ohio-5559.]

*Reporter’s Note: This decision was vacated on December 31, 2012. See opinion on 

reconsideration that appears at 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057. 

THE STATE OF OHIO, APPELLEE, v. HOOD, APPELLANT.* 

[Cite as State v. Hood, 134 Ohio St.3d 595, 2012-Ohio-5559.] 

Evidence—Criminal law—Confrontation Clause—Admission of cell-phone 

records—Cell-phone records, if properly authenticated, are business 

records and are not testimonial under Crawford v. Washington—If not 

authenticated, cell-phone records are inadmissible hearsay—

Authentication may be provided only by custodian or other witness who is 

qualified to testify that records were kept in ordinary course of regularly 

conducted business—Error in admission of evidence harmless when other 

evidence of guilt is overwhelming. 

(No. 2010-2260—Submitted November 2, 2011—Decided December 3, 2012.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 93854, 2010-Ohio-5477. 

__________________ 

 PFEIFER, J. 

{¶ 1} The issue we address in this case is whether, in general, cell-phone 

records produced by a cell-phone company constitute testimonial evidence that 

implicates a defendant’s right to cross-examine a witness under the Confrontation 

Clause of the Sixth Amendment to the United States Constitution. We hold that 

ordinarily such records, if properly authenticated, are business records and are not 

testimonial. However, in an instance where cell-phone records are not properly 

authenticated at trial, they are inadmissible as hearsay and their admission violates 

a defendant’s rights under the Confrontation Clause. In this case, we find that the 

admission of the cell-phone records was error but that that error was harmless 

beyond a reasonable doubt. 
SUPREME COURT OF OHIO

2 

Factual and Procedural Background 

{¶ 2} In the early morning hours of January 26, 2009, defendantappellant, James Hood, allegedly was one of four men who burst into a Cleveland 

home and robbed at gunpoint nearly a dozen people who had gathered to celebrate 

the birthdays of friends and family. A co-conspirator, Samuel Peet, was shot dead 

during the course of the robbery. Hood was arrested and charged with murder 

and multiple counts of aggravated burglary, aggravated robbery, and kidnapping. 

As part of the proof to establish Hood’s involvement in the crimes, the state 

introduced cell-phone records that it argued showed his communication with the 

other co-conspirators and his whereabouts during the early morning in question. 

The issue we address is whether the introduction of that evidence violated the 

Confrontation Clause of the Sixth Amendment to the United States Constitution. 

The Crime 

{¶ 3} In the late evening of January 25, 2009, a group of friends gathered 

in the basement of Sharon Jackson’s home on Parkview Avenue in Cleveland to 

play cards and celebrate the birthdays of Denotra Jones and her son, Rodney. 

Among the guests that evening was one of the alleged co-conspirators, Terrence 

Davis, also known as “TD.” According to Rodney Jones, Davis’s presence was 

unusual: Davis had not joined the group in over a year, and he left the party 

several times throughout the evening. Davis had met earlier that day with Samuel 

Peet and the other co-conspirators—Hood and Kareem Hill—and told them about 

the party. 

{¶ 4} Jerrell Jackson, homeowner Sharon Jackson’s son, was the first 

person to be confronted by the assailants. He had walked some guests to their 

cars at around 5:00 a.m.; when he went back inside, there were four men in the 

hallway wearing masks and carrying guns. Jerrell noticed that one gun was an 

Uzi. Jerrell ran down into the basement, yelling a warning to everyone. Sharon 

Jackson, who had fallen asleep on a couch in her basement, was awakened by the 
January Term, 2012 

3 

commotion; she saw Jerrell being followed into the basement by four men 

wearing masks and carrying guns. She described the guns as two 9 mm 

handguns, one Uzi, and one handgun with a long chrome barrel. The robbers 

made the victims strip, then searched the clothing and took money and cell 

phones. 

{¶ 5} Nine of the eleven victims testified at trial. They described the 

same basic facts—men in dark clothing, wielding guns, stormed into the 

basement, ordered some of the victims to remove their clothes, and stole money 

and cell phones from them at gunpoint. Some witnesses differed on the number 

of assailants, ranging from two to four, but the victims were robbed in two 

separate rooms of the basement. At some point, gunshots were heard. One of the 

co-conspirators, Peet, was later found dead nearby, in a yard several houses away. 

Several of the victims were able to identify him as one of the assailants due to his 

distinctive coat. He had been shot twice from close proximity; on his body were 

two cell phones belonging to victims and $345 in cash. 

{¶ 6} Earlier that morning, around 4:00 a.m., police received a report of 

a male pointing a gun at another male in the area of East 104th Street and Sophia 

Avenue, near where Hood lived. En route to the scene, the officers observed a 

green Jeep Cherokee stopped in the middle of Parkview Avenue with its lights on. 

As the officers approached, the Jeep sped away. The officers pursued the Jeep 

and were able to get a partial plate number, “EOF,” before losing sight of the 

vehicle. The same officers were called to help investigate the Parkview Avenue 

break-in and were told that a sport utility vehicle was involved in the crime. 

Shortly after the break-in, a green Cherokee, license plate number EOF 7079 was 

spotted at a local McDonald’s. Hood, his co-defendant Kareem Hill, and William 

Sparks were removed from the vehicle and arrested. Cash, a mask, and two 

victims’ cell phones were found inside. At the time of his arrest, Hood had 

$411.25 in cash in his possession. Hill eventually testified against Hood. 
SUPREME COURT OF OHIO

4 

Kareem Hill’s Testimony 

{¶ 7} Hill initially lied to police and denied any involvement in the 

crimes. But when a latex glove found at the scene tested positive for Hill’s DNA, 

Hill pleaded guilty to reduced charges and agreed to testify truthfully against 

Hood. 

{¶ 8} Hill knew his co-conspirators Hood, Davis, and Peet from the 

neighborhood where he grew up. Hill was 18 at the time of the crimes; Hood was 

older—he was 29 at the time of the trial, according to his attorney. In the hours 

before the robbery, Hill and Hood met Davis and Peet at a bar. The four 

discussed robbing a card game on Parkview Avenue. Davis left the bar to go to 

the party. Davis eventually returned to the bar and laid out the specifics about the 

party situation. 

{¶ 9} They all left the bar—Davis and Peet in one car, and Hill and Hood 

in Hill’s green Jeep Cherokee. Hood and Hill went to Hood’s house on Sophia 

Avenue to pick up guns. Hood went into his house and returned to the vehicle 

with a semiautomatic pistol, an Uzi, and latex gloves. Hill and Hood then drove 

to Parkview Avenue, where they saw Peet standing in a driveway near the target 

house; they let Peet get into the back seat of the Jeep. Peet had a gun. 

{¶ 10} The three waited in the car. When Davis approached and informed 

them that the back door of the target house was open, Hood and Peet left the 

vehicle while Hill parked on the next street. Hill then cut through back yards to 

meet the others. All had weapons and wore hats or masks; Hill, Hood, and Davis 

wore latex gloves. Hill carried a black handgun, Peet carried a long silver 

revolver, Davis carried a black pistol, and Hood carried an Uzi. 

{¶ 11} Hill testified that he and his cohorts took money and cell phones 

from the victims. At one point, there was an argument between Hood and Peet—

Hood had accused Peet of stealing money from the pile of cash that was to be 

divided. Davis broke up the altercation by announcing that it was time to leave. 
January Term, 2012 

5 

{¶ 12} Hill ran up the stairs and outside; he was outside when he heard 

gunshots from inside the house. He never saw Peet leave the house. Hill and 

Hood left in Hill’s Jeep while Davis went off in another direction. 

{¶ 13} Hill and Hood returned to Hood’s house on Sophia to drop off the 

guns. Hood went inside. Hood returned to the Jeep, and the two picked up Hill’s 

friend William Sparks, who, Hill said, had called him for a ride to McDonald’s. 

Hill let Sparks drive. They went to McDonald’s, where police stopped and 

arrested the three. The state ultimately did not pursue charges against Sparks. 

Cellular-Phone-Record Testimony 

{¶ 14} At trial, the prosecution introduced cell-phone records for Hood, 

Hill, and Davis that detectives claimed to have subpoenaed from cellular-phone 

companies. Detective Carlin described the subpoena process: 

We have to go to a county prosecutor. We can’t just go and 

say we want these records. The phone companies have rules on 

that. They just don’t give them out. 

We obtain an authorization for a subpoena and then we 

respond to—there is a subpoena person in the prosecutor’s office 

* * *. We provide them with the numbers, they then type up the 

subpoenas, and based on their records and their relationship with 

the phone companies, they know, with the prefix numbers, what 

company that subpoena needs to go to and they direct the subpoena 

to that company. 

{¶ 15} Carlin testified that the cell-phone records were obtained through 

that process; however, the subpoenas are not in the record. 

{¶ 16} The records purport to show cell-phone activity by Hood, Hill, and 

Davis on the night and early morning in question. During Hill’s testimony, the 
SUPREME COURT OF OHIO

6 

prosecution used the records to ask Hill about certain calls that were placed by his 

phone or received by his phone. Those calls included ones made by Hill’s cell 

phone to Davis’s cell phone and vice versa, some right around the time of the 

crimes. Indeed, Detective Carlin testified that Davis first became a suspect in the 

robberies when the phone records were reviewed. There was also a call from one 

of the stolen cell phones to Hill’s phone; Hill claimed that Hood had called Hill’s 

number to see whether the stolen phone worked. The records showed Hill trying 

to contact Davis several times just before and after the robberies; Hill testified 

that Hood borrowed his phone to make those calls. 

{¶ 17} When the prosecution first attempted to use cell-phone records in 

its direct examination of Hill, the defense objected, claiming that the records 

lacked verification or certification of their authenticity. The prosecution argued 

that the records fell under the business-records exception to the hearsay rule and 

that Hill could verify the records based on his own knowledge. The court 

determined that the prosecution could use the records to have Hill testify as long 

as another witness would authenticate the records. The prosecutor stated that 

Detective Carlin, who subpoenaed the records, would testify as to how she 

obtained them. The defense argued that Detective Carlin could not authenticate 

business records of another entity and entered a continuing objection on the 

record. 

{¶ 18} On cross-examination, the defense used the phone records to poke 

holes in Hill’s version of events. For instance, phone records showed that 

someone used Hill’s cell phone to call Hood’s cell phone at 2:42 a.m. Hill could 

not explain why he would have called Hood at a time when, according to Hill, the 

two men were a few feet apart, in the same car. 

{¶ 19} After the cross-examination, Hood renewed his objection to the 

cell-phone records after the state related that it would use Detective Carlin’s 

partner, Detective Henry Veverka, to verify the records. The trial court remarked 
January Term, 2012 

7 

at that time: “I’ve done the case law research on it and my gut reaction is to 

subpoena Verizon on that basis. I guess Veverka would just have to come in and 

say that he issued it, how he’s familiar with the business records of the company. 

That would be the testimony that would be proper.” 

{¶ 20} Detective Veverka testified that the records were obtained through 

subpoena. He also testified about his experience interpreting cell-phone records, 

which he learned mostly on the job through other detectives, including experience 

in using information from providers to determine geographic locations of the cell 

phone at the time calls were made, based upon cell-tower data. Veverka testified 

that Hood did not have his cell phone with him at the time of his arrest. He 

reviewed call logs for the days at issue, as well as cellular-tower records. He 

testified as to State’s Exhibit 187, which contained tower records for Hood’s cell 

phone. Those records indicated which cell tower Hood was near when he used 

his phone. 

{¶ 21} Through the records, Veverka was able to ascertain that between 

10:00 p.m. through 3:00 a.m., 15 calls were made or received on Hood’s phone. 

The last of those 15 calls was at approximately 2:42 a.m.; the next call was at 6:24 

a.m. He was able to determine through tower records that Hood was in the 

vicinity of the robbery when he used his cell phone. Through another record 

containing a log of calls to and from Hood’s cell phone, Veverka was able to 

determine the dates and duration of the calls and the phone numbers involved. 

{¶ 22} From his examination of the cell-phone records, Veverka 

concluded that Hood, Hill, and Davis were all in the vicinity of the targeted house 

at the time the robberies were committed. 

{¶ 23} Defense counsel cross-examined Veverka. He admitted that 

although he knew more about interpreting cell-phone records than his fellow 

detectives, he did not have any expertise in cell phones or towers. He admitted 

being unaware that different towers have different powers and admitted that 
SUPREME COURT OF OHIO

8 

phone company experts could provide maps and charts showing which towers 

serve which areas. 

{¶ 24} The records Veverka testified about were admitted into evidence. 

The documents sent to the jury contained some alterations by the detective—he 

wrote the phone numbers of the suspects on the documents and color-coded the 

records to highlight phone calls involving the different participants in the robbery. 

Hood’s counsel objected, stating that the records had not been verified as a 

business record, had not been identified by any phone company, and contained the 

detective’s personal notes, and that the alleged subpoenas were not in the record. 

The trial judge overruled the objection. 

Verdict and Appeal 

{¶ 25} The jury convicted Hood on one count of murder pursuant to R.C. 

2903.02(B), “caus[ing] the death of another as a proximate result of the offender’s 

committing or attempting to commit an offense of violence that is a felony of the 

first or second degree,” and acquitted him on one count of murder as defined in 

R.C. 2903.02(A), “purposely caus[ing] the death of another.” Further, the jury 

convicted Hood of nine counts of kidnapping, nine counts of aggravated robbery, 

and one count of aggravated burglary, as well as two firearm specifications for 

each count, which were merged for purposes of sentencing into a single 

specification. The trial court had granted Hood’s motion for acquittal on two 

counts of kidnapping and two counts of aggravated robbery when two of the 

victims failed to testify. The court ultimately sentenced Hood to an aggregate 

term of 21 years to life in prison. 

{¶ 26} Hood appealed his convictions to the Eighth District Court of 

Appeals; among other things, he argued that the trial court had erred “by allowing 

cell phone records to be admitted into evidence without being properly 

authenticated in violation of the Confrontation Clause.” The appellate court held 

that “[a]ssuming arguendo that these records were inadmissible and violative of 
January Term, 2012 

9 

appellant’s right to confront the witnesses against him, any error on the part of the 

trial court in this regard was harmless.” State v. Hood, 8th Dist. No. 93854, 2010-

Ohio-5477, ¶ 27. The appellate court applied the harmless-error standard 

applicable to constitutional error: 

Before constitutional error can be considered harmless, we must be 

able to “declare a belief that it was harmless beyond a reasonable 

doubt.” Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 

824, 17 L.Ed.2d 705. Where there is no reasonable possibility that 

the unlawful testimony contributed to a conviction, the error is 

harmless and therefore will not be grounds for reversal. State v. 

Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623, paragraph three 

of the syllabus, vacated on other grounds in (1978), 438 U.S. 910, 

98 S.Ct. 3135, 57 L.Ed.2d 1154. 

Id. 

{¶ 27} The appellate court determined that the admission of the cellphone records did not contribute to Hood’s conviction and affirmed the judgment 

of the trial court. 

{¶ 28} Hood sought jurisdiction in this court on the following proposition 

of law: 

 Cell phone records are not admissible as business records 

without proper authentication. The admission of unauthenticated 

cell phone records under the business records exception violates 

the Confrontation Clause of the Sixth Amendment to the United 

States Constitution. 
SUPREME COURT OF OHIO

10 

{¶ 29} The matter is before this court upon the acceptance of a 

discretionary appeal. 128 Ohio St.3d 1411, 2011-Ohio-828, 942 N.E.2d 384. 

Law and Analysis 

Confrontation Clause 

{¶ 30} The Sixth Amendment to the United States Constitution, in its 

Confrontation Clause, preserves the right of a criminal defendant “to be 

confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 

36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court of the 

United States stated that the Confrontation Clause bars “admission of testimonial 

statements of a witness who did not appear at trial unless he was unavailable to 

testify, and the defendant had had a prior opportunity for cross-examination.” 

The key issue is what constitutes a testimonial statement: “It is the testimonial 

character of the statement that separates it from other hearsay that, while subject 

to traditional limitations upon hearsay evidence, is not subject to the 

Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273, 

165 L.Ed.2d 224 (2006). 

{¶ 31} In Crawford, the court suggested that business records are “by 

their nature” nontestimonial. Id. at 56. In State v. Craig, 110 Ohio St.3d 306, 

2006-Ohio-4571, 853 N.E.2d 621, this court stated that business records “are not 

‘testimonial in nature because they are prepared in the ordinary course of 

regularly conducted business and are “by their nature” not prepared for 

litigation.’ ” Id. at ¶ 82, quoting People v. Durio, 7 Misc.3d 729, 734, 794 

N.Y.S.2d 863 (N.Y.Sup.Ct.2005). Whether a business record meets a hearsay 

exception is immaterial in regard to the Confrontation Clause; it is the 

nontestimonial character of the record that removes it from the purview of the 

Confrontation Clause: 
January Term, 2012 

11 

Business and public records are generally admissible absent 

confrontation not because they qualify under an exception to the 

hearsay rules, but because—having been created for the 

administration of an entity’s affairs and not for the purpose of 

establishing or proving some fact at trial—they are not testimonial. 

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527, 174 L.Ed.2d 

314 (2009). 

{¶ 32} A Confrontation Clause issue can arise “ if the regularly conducted 

business activity is the production of evidence for use at trial.” Id. at 321. In 

Melendez-Diaz, for instance, the items of evidence at issue were reports by a 

company that provided forensic analysis on seized substances to establish whether 

they were illegal. 

{¶ 33} But the regularly conducted business activity of cell-phone 

companies is not the production of evidence for use at trial. The fact that records 

are used in a trial does not mean that the information contained in them was 

produced for that purpose. Even when cell-phone companies, in response to a 

subpoena, prepare types of records that are not normally prepared for their 

customers, those records still contain information that cell-phone companies keep 

in the ordinary course of their business. In United States v. Yeley-Davis, 632 F.3d 

673, 679 (10th Cir.2011), the defendant argued that the documents produced by 

the cellular-phone company were not merely phone records but were instead 

exhibits prepared especially for trial to prove the commission of a crime. The 

information contained in the exhibits was similar to that contained in the exhibits 

at issue in this case: “The phone records provide information about each call 

made or received by Ms. Yeley-Davis's number, including the number making the 

call, the number receiving the call, and the date and duration of the call.” Id. at 

677. The court rejected the defendant’s argument: 
SUPREME COURT OF OHIO

12 

Ms. Yeley-Davis contends that the phone records and 

authenticating documents in Exhibit 5 are testimonial because they 

were prepared solely for use at trial to prove the conspiracy. * * * 

Specifically, she argues that the records were not telephone bills, 

but rather “exhibits prepared especially and only for trial.” * * * 

Ms. Yeley-Davis is correct that the phone records in Exhibit 5 are 

not telephone bills. This does not mean, however, that these 

records were created simply for litigation—they were not. Rather, 

these records were kept for Verizon’s business purposes. 

Id. at 679. 

{¶ 34} Likewise, in United States v. Green, 396 Fed.Appx. 573, 575 (11th 

Cir.2010), the court held that subpoenaed records from the defendant’s cell-phone 

carrier were not testimonial: “[The defendant’s] cell phone records and cell tower 

location information qualified as business records under Fed.R.Evid. 803(6) 

which, by their nature, are non-testimonial for purposes of the Sixth 

Amendment.” The court noted that “documents which are routinely recorded for 

a purpose other than preparation for a criminal trial are non-testimonial for 

purposes of the Sixth Amendment.” Id. at 574-575. 

{¶ 35} Unlike the laboratory reports that the court found to be testimonial 

in Melendez-Diaz or Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 

180 L.Ed.2d 610 (2011), the culling and configuration of cell-phone records does 

not require the undertaking of a scientific process or an interpretation of results 

from experimentation. It reflects only a formatting of information that already 

exists as a part of the company’s day-to-day business. 

 
January Term, 2012 

13 

Authentication of Business Records 

{¶ 36} Because cell-phone records are generally business records that are 

not prepared for litigation and are thus not testimonial, the Confrontation Clause 

does not affect their admissibility. But the hearsay rule may bar their admission 

unless certain conditions are met: 

“To qualify for admission under Rule 803(6), a business record 

must manifest four essential elements: (i) the record must be one 

regularly recorded in a regularly conducted activity; (ii) it must 

have been entered by a person with knowledge of the act, event or 

condition; (iii) it must have been recorded at or near the time of the 

transaction; and (iv) a foundation must be laid by the ‘custodian’ 

of the record or by some ‘other qualified witness.’ ” 

State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171, quoting 

Weissenberger, Ohio Evidence Treatise, Section 803.73, 600 (2007). 

{¶ 37} Here, there was simply no foundation laid by a custodian of the 

record or by any other qualified witness. Detective Veverka was not a custodian 

of the records. He did not prepare or keep the phone records as part of a regularly 

conducted business activity. Nor was he an “other qualified witness” under the 

rule. A “qualified witness” for this purpose would be someone with “enough 

familiarity with the record-keeping system of the business in question to explain 

how the record came into existence in the ordinary course of business.” 5 

McLaughlin, Weinstein’s Federal Evidence, Section 803.08[8][a] (2d Ed.2009); 

United States v. Lauersen, 348 F.3d 329, 342 (2d Cir.2003). Tellingly, in the 

midst of discussions regarding the lack of authentication of the records, the trial 

judge remarked, “My gut reaction is to subpoena Verizon.” That did not happen. 
SUPREME COURT OF OHIO

14 

{¶ 38} In Yeley-Davis, both the certification authenticating Yeley-Davis’s 

phone records and the affidavit authenticating the phone records of her two 

alleged co-conspirators stated that the records were kept in the course of 

Verizon’s regularly conducted business. 632 F.3d at 677. In this case, there is no 

such authentication. The records in this case lacked a certification or affidavit 

authenticating them, and no “custodian or other qualified witness” testified that 

the phone records were business records. 

{¶ 39} Thus, the cell-phone records in this case were hearsay; they were 

“statement[s] * * * offered in evidence to prove the truth of the matter asserted.” 

Evid.R. 801(C). They were offered to prove that cell-phone contact had occurred 

between co-conspirators up to the time of the crime and immediately afterward. 

Since the records were not authenticated pursuant to Evid.R. 803(6), they were 

inadmissible as hearsay pursuant to Evid.R. 802. 

{¶ 40} A hearsay violation itself violates the Confrontation Clause, and 

thus requires a heightened harmless-error analysis: 

As noted by the United States Supreme Court, hearsay 

violates the Confrontation Clause of the United States Constitution 

unless it comes within a firmly rooted exception or contains other 

indicia of reliability. White v. Illinois (1992), 502 U.S. 346, 356, 

112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859. Thus, any error in 

admitting this hearsay would be constitutional error. In order to 

find constitutional error harmless, this court must find beyond a 

reasonable doubt that the error did not contribute to the verdict. 

Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 

17 L.Ed.2d 705, 710-711. 

State v. Johnson, 71 Ohio St.3d 332, 339, 643 N.E.2d 1098 (1994). 
January Term, 2012 

15 

{¶ 41} In State v. Hirtzinger, 124 Ohio App.3d 40, 49-50, 705 N.E.2d 395 

(2d Dist.1997), the court faced a similar issue. In a criminal trespass case, the 

defendant’s ex-wife testified that she had called the defendant on his cell phone 

when she saw his truck coming out of her driveway. She stated that he answered 

the call, laughed at her, and hung up. The defendant denied answering the call 

and denied that he was in the area. At trial, the prosecutor had the ex-wife 

authenticate her own cell-phone bill to demonstrate that she had made a call at the 

time she claimed and that the call had lasted less than a minute. The trial court 

allowed the admission of the cell-phone bill based upon that authentication. 

{¶ 42} The appellate court held that the ex-wife could not selfauthenticate the phone bill: 

This rule [Evid.R. 803(6)] requires that some person testify 

as to the regularity and reliability of the business activity involved 

in the creation of the record. In the instant case, the prosecution 

did not call to the stand any Ameritech employees to testify as to 

the nature of their billing practices. The only foundation for the 

evidence came through Mrs. Hirtzinger. That foundation was not 

adequate. 

Hirtzinger at 49. As for the appropriate error analysis, the court held: 

When a court admits hearsay against the dictates of Evid.R. 802, 

the standard of review is a strict one. “In the final analysis, the 

evidence in favor of conviction, absent the hearsay, must be so 

overwhelming that the admission of those statements was harmless 

beyond a reasonable doubt.” State v. Kidder (1987), 32 Ohio St.3d 

279, 284, 513 N.E.2d 311, 317. 
SUPREME COURT OF OHIO

16 

Hirtzinger at 50. 

Harmlessness Review 

{¶ 43} In determining whether admission of the cell-phone records was 

harmless, the court below applied the “harmless beyond a reasonable doubt” 

standard of review. Hood, 2010-Ohio-5477, at ¶ 27. “Where constitutional error 

in the admission of evidence is extant, such error is harmless beyond a reasonable 

doubt if the remaining evidence, standing alone, constitutes overwhelming proof 

of [the] defendant’s guilt.” State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 

(1983), paragraph six of the syllabus. The court below concluded, “Considering 

Hill’s devastating testimony against appellant, we cannot find that the admission 

of the cell phone records contributed to appellant’s conviction.” 2010-Ohio-5477 

at ¶ 30. We agree that the admission of the cell-phone records was harmless 

beyond a reasonable doubt. 

{¶ 44} The evidence of Hood’s guilt was overwhelming. We first note 

that jurors did not have to believe that Hood pulled the trigger to find him 

responsible for Peet’s death; they just had to find that he participated in the 

criminal act that led to Peet’s death. Kareem Hill was a co-conspirator and 

eyewitness; Hill’s DNA was found at the scene. His version of events inside the 

house was consistent with testimony from the victims. He provided detailed 

testimony against Hood. 

{¶ 45} Hill’s testimony was, by itself, disastrous for the defense. And it 

was corroborated by other evidence. Hood’s DNA was found in Hill’s vehicle, on 

a cigar tip in the front ashtray; Hood could not be ruled out as a contributor to 

DNA found on the right and left rear interior passenger doors of Hill’s vehicle. 

Peet could not be ruled out as a contributor of part of the mix of DNA found on 

the interior left rear passenger door, corroborating Hill’s testimony that Hood and 

Peet had been together in Hill’s vehicle. 
January Term, 2012 

17 

{¶ 46} When police surrounded Hill’s vehicle in the McDonald’s parking 

lot following the robbery, Hood was inside. Also in the vehicle were cell phones 

stolen during the robbery, as well as cash. A large amount of cash was found in 

Hood’s possession. 

{¶ 47} What role did the cell-phone records play in Hood’s conviction? 

Upon review, we conclude that the records were of minimal probative value and, 

at most, were merely cumulative in effect. Veverka testified that cell-tower logs 

placed Hood in the vicinity of the crime. But there were no calls to or from Hood 

between 2:52 a.m. and 6:24 a.m. on the morning of the crime. The break-in 

occurred at around 5:00 a.m., so the cell towers do not place him in the vicinity at 

the crucial time. 

{¶ 48} In one respect, the phone records could even be seen as weakening 

the state’s case against Hood. As the defense pointed out during its crossexamination of Hill, the records reflect calls made between Hill and Hood at times 

when the two men were, according to Hill, together in Hill’s car. Hill had no 

explanation for why two people would communicate by phone when they were 

both inside the same car. 

{¶ 49} Terrence Davis’s records were also introduced. The records reveal 

no contact with Hood, but there is contact with Hill. This does back up Hill’s 

testimony that conversations regarding planning occurred between someone using 

Hill’s phone and Davis. 

{¶ 50} But the key evidence—the evidence that places Hood inside the 

house participating in the crimes—does not depend in any way on the cell-phone 

records. DNA evidence proves that Hill was there, and Hill placed Hood there, 

armed with an Uzi, wearing latex gloves, and participating in the robberies. 

Victim testimony corroborated to a large extent Hill’s version of events inside the 

house. Hood was in the vehicle containing the spoils of the robberies soon after 

they occurred. We thus conclude that the admission of the cell-phone records did 
SUPREME COURT OF OHIO

18 

not contribute to Hood’s conviction and that their admission was harmless beyond 

a reasonable doubt. 

{¶ 51} We therefore affirm the judgment of the court of appeals. 

Judgment affirmed. 

O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and 

MCGEE BROWN, JJ., concur. 

O’DONNELL, J., dissents and would dismiss the appeal as having been 

improvidently accepted. 

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William D. Mason, Cuyahoga County Prosecuting Attorney, and Kristen 

L. Sobieski, Assistant Prosecuting Attorney, for appellee. 

Timothy Young, Ohio Public Defender, and Melissa M. Prendergast, 

Assistant Public Defender, for appellant. 

Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor 

General, Elisabeth A. Long, Deputy Solicitor, and Samuel Peterson, Assistant 

Attorney General, urging affirmance for amicus curiae, state of Ohio. 

______________________