[Cite as State v. Rios, 2011-Ohio-4720.]

 IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 10CA0059 

vs. : T.C. CASE NO. 09CR0204 

JUAN RIOS : 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 16th day of September, 2011. 

 . . . . . . . . . 

Andrew D. Wilson, Pros. Attorney, Atty. Reg. No.0073767, Andrew 

R. Picek, Asst. Pros. Attorney, Atty. Reg. No. 0082121, P.O. 1608, 

Springfield, OH 45501 

Attorney for Plaintiff-Appellee 

Keith O’Korn, Atty. Reg. No.0069834, 440 Polaris Parkway, Suite 

150, Westerville, OH 43082 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant, Juan Rios, appeals from his conviction for 

vandalism, R.C. 2909.05(B)(2). 

{¶ 2} On the morning of February 17, 2009, Lieutenant Vernon 

Whitt of the Jail Division of the Clark County Sheriff’s Department 
2

learned that a window in the dayroom of the north block on the 

fifth floor of the jail had been broken. At that time, Defendant 

was being held in a cell next to the dayroom, awaiting trial on 

a capital murder charge, and had access to the dayroom. 

{¶ 3} Lieutenant Whitt reviewed recordings of calls made from 

a telephone in the dayroom on the evening before, February 16, 

2009. In a call made to Shianne Rice, a male caller was heard 

to say that he “had been working on this hole all f-----g day.” 

 The caller also asked Rice to assist him in bringing drugs into 

the jail through a broken window. 

{¶ 4} Defendant was indicted on one count of vandalism, R.C. 

2909.05(B)(2). At Defendant’s trial, Lieutenant Whitt identified 

the male voice heard on the recorded telephone calls, which were 

played for the jury, as Defendant’s voice. Clark County Facilities 

Director Jackie Ashworth testified that the cost of replacing panes 

broken from the window was $1,400.00. 

{¶ 5} Defendant was found guilty of the vandalism charge and 

was convicted. He was sentenced to a one year prison term. 

Defendant filed a notice of appeal. 

FIRST ASSIGNMENT OF ERROR

{¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED 

THE STATE TO PLAY TWO PORTIONS OF RECORDED JAIL PHONE CALLS AND 

THEN ADMITTED SAID CALLS AS AN EXHIBIT.” 
3

{¶ 7} The admission or exclusion of evidence rests within the 

sound discretion of the trial court and will not be disturbed on 

appeal absent an abuse of that discretion. State v. Sage (1987), 

31 Ohio St.3d 173. 

{¶ 8} “‘Abuse of discretion’ has been defined as an attitude 

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair 

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 

N.E.2d 1248, 1252. It is to be expected that most instances of 

abuse of discretion will result in decisions that are simply 

unreasonable, rather than decisions that are unconscionable or 

arbitrary. 

{¶ 9} “A decision is unreasonable if there is no sound 

reasoning process that would support that decision. It is not 

enough that the reviewing court, were it deciding the issue de 

novo, would not have found that reasoning process to be persuasive, 

perhaps in view of countervailing reasoning processes that would 

support a contrary result.” AAAA Enterprises, Inc. v. River Place 

Community Redevelopment (1990), 50 Ohio St.3d 157, 161. 

{¶ 10} Ann Woodruff testified that she is employed by the Clark 

County Information Services Department. Woodruff testified that 

Clark County has entered into a contract with a service in Texas 

to record calls made by inmates in the Clark County Jail from 

telephones made available to them there. The calls are traceable 
4

to a calling card purchased by an inmate. Woodruff is able to 

retrieve those calls using an internet web interface. 

{¶ 11} Woodruff testified that Lieutenant Vernon Whitt of the 

Clark County Sheriff’s Department asked her to download telephone 

calls made on February 23, 2009, from a particular telephone in 

the Clark County Jail. She did so, and transcribed those calls 

onto a tape which she marked with her initials. The tape was 

introduced as State’s Exhibit 2. 

{¶ 12} Lieutenant Whitt corroborated Woodruff’s testimony 

concerning the request he made of her to record certain phone calls. 

 He re-recorded two of those calls onto a disc, which was marked 

as State’s Exhibit 1. Whitt testified that the calls were made 

from a telephone in a day room of the jail to which Defendant Rios 

had access. Whitt testified that the calls were collect calls 

made to Shianne Rice. Whitt identified the male voice heard on 

the tapes as the voice of Defendant Rios. 

{¶ 13} Before the recording of telephone calls marked as State’s 

Exhibit 1 was played for the jury, Rios objected on several grounds, 

including “relevancy” and “chain of custody.” The court overruled 

what it characterized as Defendant’s “foundational” objections 

based on Woodruff’s testimony concerning how the calls were 

transcribed. State’s Exhibit 1 was played for the jury. In one 

of the recorded calls, the male voice Lieutenant Whitt had 
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identified as Defendant’s voice is heard to say, with reference 

to the broken window, that he “had been working on this hole all 

f-----g day.” 

{¶ 14} Shianne Rice testified that Rios called her from the 

jail in February of 2009. Rice testified that Defendant told her 

a window in the jail was broken, but he didn’t say how it had been 

broken. 

{¶ 15} Evid.R. 103 states, in pertinent part: 

{¶ 16} “(A) Effect of erroneous ruling. Error may not be 

predicated upon a ruling which admits or excludes evidence unless 

a substantial right of the party is affected, and 

{¶ 17} “(1) Objection. In case the ruling is one admitting 

evidence, timely objection or motion to strike appears of record 

stating the specific ground of objection, if the specific ground 

was not apparent from the context.” 

{¶ 18} Rios argues that the trial court erred when it allowed 

State’s Exhibit 1 to be played for the jury, for two reasons. 

First, because “one of the snippets played implicated the Appellant 

in soliciting another to illegally convey contraband into the Clark 

County Jail.” Rios made that objection at trial. The objection 

was apparently grounded on Evid.R. 404(B) and its prohibition 

against evidence of other crimes, wrongs, or acts. Second, because 

“the State utterly failed to provide any foundation for how 
6

Lieutenant Whitt would have any ability or knowledge to identify 

Appellant’s voice on a recorded phone call . . .” Rios made no 

objection on that basis at trial. 

{¶ 19} The court overruled Defendant’s objection to evidence 

that Defendant intended to bring drugs into the jail through the 

hole in the broken window, finding “that’s relevant because it 

goes to show identity or intent or plan.” (T. 60). Those matters 

are identified by Evid.R. 404(B) as exceptions to evidence of other 

crimes, wrongs, or acts, that Evid.R. 404(B) otherwise prohibits. 

 Those exceptions also include “motive.” 

{¶ 20} Evidence establishing motive, intent, scheme or plan 

is always material because it shows why one version of events should 

be believed over another. State v. Crotts, 104 Ohio App.3d 432, 

2004-Ohio-6650, at ¶20. Defendant argued that he is not the only 

inmate who could have broken the window or spoken about it. 

Evidence that Defendant intended to bring drugs through the broken 

window is admissible to prove a motive on his part for breaking 

the window, which is the conduct that was the basis of the crime 

with which he was charged. We find no abuse of discretion. 

{¶ 21} Defendant did not specifically object at trial to 

Lieutenant Whitt’s identification of the male voice heard on 

State’s Exhibit 1 as Defendant’s voice, on the ground that 

Lieutenant Whitt failed to provide the necessary foundational 
7

evidence demonstrating how he knew that. Any error for that reason 

in admitting the evidence is therefore waived for purposes of 

appeal. Evid.R. 103(A)(1). Plain error may nevertheless be 

noticed. Crim.R. 52(B). Plain error does not exist unless it 

can be said that but for the error, the outcome of the proceeding 

clearly would have been different. State v. Long (1978), 53 Ohio 

St.2d 91. 

{¶ 22} Defendant’s argument implicates Evid.R. 901, which 

provides, in pertinent part: 

{¶ 23} “(A) General provision 

{¶ 24} “The requirement of authentication or identification 

as a condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is 

what its proponent claims. 

{¶ 25} “(B) Illustrations. By way of illustration only, and 

not by way of limitation, the following are examples of 

authentication or identification conforming with the requirements 

of this rule: 

{¶ 26} “(1) Testimony of witness with knowledge. Testimony that 

a matter is what it is claimed to be. 

{¶ 27} “* * * 

{¶ 28} “(5) Voice identification. Identification of a voice, 

whether heard firsthand or through mechanical or electronic 
8

transmission or recording, by opinion based upon hearing the voice 

at any time under circumstances connecting it with the alleged 

speaker.” 

{¶ 29} “Voice identification is established by opinion 

evidence, that is, by testimony of a witness that, based on his 

familiarity with a speaker’s voice, it is his belief that the voice 

sought to be identified or authenticated is that of the specific 

speaker.” Weissenberger’s Ohio Evidence Treatise (2010 Ed.), 

§901.68. “The proponent of voice identification testimony must 

establish by way of foundation that the witness has some familiarity 

with the alleged speaker’s voice.” Id., at §901.71. Failure to 

satisfy the familiarity requirement is subject to an objection 

pursuant to Evid.R. 602, which provides: “A witness may not testify 

to a matter unless evidence is introduced sufficient to the support 

a finding that the witness has personal knowledge of the matter.” 

{¶ 30} The State argues that the jury could reasonably infer 

that Lieutenant Whitt had the required familiarity with Defendant’s 

voice. The State points to the fact that Lieutenant Whitt was 

assigned to the jail division of the Sheriff’s Office, and that 

he had testified that jail personnel attempted to interview all 

the inmates of the pod in which Defendant was housed about the 

broken window. We do not agree that such evidence satisfies 

Evid.R. 901 or 602. It would be speculative for the jury to find 
9

from that evidence the familiarity with Defendant’s voice that 

Evid.R. 901(B)(5) requires. 

{¶ 31} Weissenberger writes, concerning Evid.R. 901: 

“Conceptually, the function of authentication or identification 

is to establish, by way of preliminary evidence, a connection 

between the evidence offered and the relevant facts of the case.” 

Id, at §901.1. The example in Evid.R. 901(B)(5) of authentication 

of a recording to identify a voice heard on the recording satisfies 

that function. However, Evid.R. 901(B) states that the examples 

therein are “[b]y way of illustration only, and not by way of 

limitation.” Our plain error analysis requires an inquiry whether 

other evidence was sufficient to demonstrate that the male voice 

heard on the recordings played for the jury was Defendant’s voice. 

{¶ 32} Defendant was an inmate of the Clark County Jail on 

February 23, 2009, when the calls heard on State’s Exhibit 1 were 

made and recorded. The calls were made from a telephone in a day 

room of the jail to which Defendant had access. The calls were 

collect calls made to Shianne Rice. Rice testified that Defendant 

made calls to her from the jail during that time. Rice further 

testified that in at least one of the calls Defendant made to her, 

Defendant told her of a window in the jail that was broken. On 

this record, and with respect to that particular evidence, the 

jury could reasonably infer that the male voice heard on the 
10

recordings was Defendant Rios’s voice. Therefore, we find that 

the outcome of the trial, Defendant’s conviction based on the guilty 

verdict the jury returned, would not clearly have been different 

but for the error in admitting Lieutenant Whitt’s voice 

identification evidence. Plain error is therefore not 

demonstrated. State v. Long. 

{¶ 33} Defendant’s first assignment of error is overruled. 

SECOND ASSIGNMENT OF ERROR

{¶ 34} “THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE.” 

{¶ 35} A weight of the evidence argument challenges the 

believability of the evidence and asks which of the competing 

inferences suggested by the evidence is more believable or 

persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. 

No. 15563. The proper test to apply to that inquiry is the one 

set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175: 

{¶ 36} “The court, reviewing the entire record, weighs the 

evidence and all reasonable inferences, considers the credibility 

of witnesses and determines whether in resolving conflicts in the 

evidence, the jury lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and 

a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d 

380, 1997-Ohio-52. 
11

{¶ 37} The credibility of the witnesses and the weight to be 

given to their testimony are matters for the trier of facts to 

resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v. 

Lawson (August 22, 1997), Montgomery App. No. 16288, we observed: 

{¶ 38} “Because the factfinder . . . has the opportunity to 

see and hear the witnesses, the cautious exercise of the 

discretionary power of a court of appeals to find that a judgment 

is against the manifest weight of the evidence requires that 

substantial deference be extended to the factfinder’s 

determinations of credibility. The decision whether, and to what 

extent, to credit the testimony of particular witnesses is within 

the peculiar competence of the factfinder, who has seen and heard 

the witness.” 

{¶ 39} This court will not substitute its judgment for that 

of the trier of facts on the issue of witness credibility unless 

it is patently apparent that the trier of facts lost its way in 

arriving at its verdict. State v. Bradley (Oct. 24, 1997), 

Champaign App. No. 97-CA-03. 

{¶ 40} Defendant argues that his conviction for vandalism is 

against the manifest weight of the evidence because Lieutenant 

Whitt could not credibly identify Defendant’s voice on the recorded 

jail phone calls, inasmuch as he did not testify how he knew or 

was able to recognize Defendant’s voice. As we discussed in 
12

overruling Defendant’s first assignment of error, on the particular 

facts in this case, the jury could reasonably infer from evidence 

other than Lieutenant Whitt’s voice identification testimony that 

the male voice heard on the recorded phone calls made from the 

jail that were played for the jury was Defendant’s voice. Any 

error in admitting Lieutenant Whitt’s opinion was harmless in 

relation to Defendant’s manifest weight claim. 

{¶ 41} Defendant also claims that his conviction is against 

the manifest weight of the evidence because the State failed to 

put on any evidence to prove chain of custody of the recorded jail 

phone calls. In State v. Hooper, Montgomery App. No. 22883, 

2010-Ohio-4041, at ¶35, we observed: 

{¶ 42} “The State has the burden of establishing the chain of 

custody of a specific piece of evidence, but the State's burden 

is not absolute; ‘[t]he state need only establish that it is 

reasonably certain that substitution, alteration or tampering did 

not occur.’ State v. Barzacchini (1994), 96 Ohio App.3d 440, 

457–458, 645 N.E.2d 137; State v. Blevins (1987), 36 Ohio App.3d 

147, 150, 521 N.E.2d 1105. While authentication of evidence is 

a condition precedent to its admission, the condition is satisfied 

when the evidence is ‘sufficient to support a finding that the 

matter in question is what its proponent claims.’ Evid.R. 901(A); 

State v. Hunter, 169 Ohio App.3d 65, 861 N.E.2d 898, 2006–Ohio 
13

5113, at ¶ 16.” 

{¶ 43} Ann Woodruff, an employee of the Clark County Information 

Services Department, testified at trial about the systems and 

procedures in place for recording phone calls made from the jail 

by inmates, and how she retrieved the recorded jail phone calls 

made from a particular phone in the jail between February 13-17, 

2009, and gave them to Lieutenant Whitt. Furthermore, Lieutenant 

Whitt testified regarding the request he made of Woodruff to 

retrieve certain recorded jail phone calls in this case, and how 

he personally made a copy of the recorded jail phone calls he 

received from Woodruff and did not alter those recordings in any 

way. On the evidence presented in this case, it is reasonably 

certain that no alteration or tampering with the recorded jail 

phone calls occurred. 

{¶ 44} The trier of facts in this case, the jury, did not lose 

its way simply because it chose to believe the State’s witnesses, 

which it had a right to do. DeHass. The credibility of the 

witnesses and the weight to be given to their testimony were matters 

for the trier of facts to decide. Id. 

{¶ 45} Reviewing this record as a whole, we cannot say that 

the evidence weighs heavily against a conviction, that the trier 

of facts lost its way in choosing to believe the State’s witnesses, 

or that a manifest miscarriage of justice has occurred. 
14

Defendant’s conviction is not against the manifest weight of the 

evidence. 

{¶ 46} Defendant’s second assignment of error is overruled. 

THIRD ASSIGNMENT OF ERROR

{¶ 47} “THE TRIAL COURT ERRED WHEN IT FAILED TO CREDIT APPELLANT 

WITH ANY JAIL TIME CREDIT IN THE VANDALISM CASE AT SENTENCING GIVEN 

THAT APPELLANT HAD NOT EVEN BEEN TRIED, CONVICTED OR SENTENCED 

IN THE OTHER PENDING CAPITAL CASE, AND THUS, VIOLATED R.C. 2967.191 

AND THE EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO 

THE U.S. CONSTITUTION AND ARTICLE I, SECTION TWO OF THE OHIO 

CONSTITUTION.” 

{¶ 48} Defendant argues that the trial court erred by failing 

to award him jail time credit for the 414 days he spent in jail 

awaiting trial on this vandalism charge. 

{¶ 49} In State v. Coyle, Montgomery App. No. 23450, 

2010-Ohio-2130, at ¶5-7, this court stated: 

{¶ 50} “‘[W]here, for whatever reason, a defendant remains in 

jail prior to his trial, he must be given credit on the statutorily 

fixed sentence ultimately imposed for all periods of actual 

confinement.’ White v. Gilligan (S.D.Ohio 1972), 351 F.Supp. 1012, 

1014. The requirement enforces the Fourteenth Amendment right to 

equal protection of the law. Workman v. Cardwell (N.D.Ohio 1972), 

31 Ohio Mis. 99, 31 Ohio Misc. 99, 338 F.Supp. 893. 
15

{¶ 51} “R.C. 2967.191 implements the equal protection right 

by imposing on the department of rehabilitation and correction 

the specific responsibility to ‘reduce the stated prison term of 

a prisoner ... by the total number of days that the prisoner was 

confined for any reason arising out of the offense for which the 

prisoner was convicted and sentenced, including confinement in 

lieu of bail while awaiting trial [,] ... and confinement while 

awaiting transportation to the place where the prisoner is to serve 

the prisoner's term.’ 

{¶ 52} “‘Although the [department of rehabilitation and 

correction] has a mandatory duty pursuant to R.C. 2967.191 to credit 

an inmate with the jail time already served, it is the trial court 

that makes the factual determination as to the number of days of 

confinement that a defendant is entitled to have credited toward 

his sentence.’ State ex rel. Rankin v. Ohio Adult Parole Authority,

98 Ohio St.3d 476, 786 N.E.2d 1286, 2003-Ohio-2061, at ¶ 7. 

Furthermore, any error in the determination the court makes ‘may 

be raised by way of a direct appeal of his criminal case.’ Id.,

at ¶ 10, 786 N.E.2d 1286, citing State ex rel. Jones v. O'Connor

(1999), 84 Ohio St.3d 426, 704 N.E.2d 1223.” 

{¶ 53} Prisoners are not entitled to jail time credit against 

a sentence of incarceration for any period of incarceration that 

arises from facts separate and apart from those upon which their 
16

 sentence is based. State v. Logan (1991), 71 Ohio App.3d 292; 

State v. Redman, Ross App. No. 00CA2556, 2001-Ohio-2679; State 

v. Klein, Hamilton App. No. C-040176, C-040224, 2005-Ohio-1761. 

{¶ 54} Defendant was charged with the offense of vandalism by 

indictment filed on March 9, 2009 in Case No. 09CR0204. An arrest 

warrant was issued on that indictment and served on Defendant on 

March 10, 2009. At that time, Defendant was being held in jail 

without bond on unrelated capital murder charges in Case No. 

08-CR-523. Throughout the pendency of this vandalism case, 

Defendant continued to be held in jail on both the unrelated capital 

murder charges in Case No. 08-CR-523, and also on the $2,500 cash 

or surety bond in the vandalism case that Defendant did not post. 

{¶ 55} At the sentencing hearing on April 26, 2010, the trial 

court indicated that Defendant would receive credit for any time 

he is entitled to. The court granted the parties until April 30, 

2010, to submit memoranda on the amount of jail time credit 

Defendant should receive. On April 27, 2010, Defendant filed a 

memo requesting 414 days of jail time credit for the time Defendant 

spent in jail awaiting trial on this vandalism charge, from 

indictment to date of conviction. In its judgment entry of 

conviction, the trial court awarded Defendant jail time credit 

only from April 26, 2010, the date of his conviction, until his 

conveyance to the penitentiary. The trial court did not give 
17

Defendant any credit for the time he spent in jail prior to trial 

on this vandalism charge. 

{¶ 56} In arguing that the trial court erred in failing to award 

him 414 days of jail time credit for the time he spent in jail 

awaiting trial on this vandalism charge, Defendant relies upon 

State v. Klein. That reliance is misplaced, because Klein is 

distinguishable. In Klein, the defendant was held in jail prior 

to trial on both a receiving stolen property charge, for which 

he did not post bond, and on a parole holder based solely upon 

the same receiving stolen property charge. The trial court 

refused to give Defendant credit against the sentence imposed on 

the receiving stolen property conviction because, except for one 

day, Defendant was at that same time also being held in jail on 

the parole holder. Accordingly, the trial court credited 

Defendant for one day of pretrial confinement, that being the 

amount of time that he was held only on the receiving stolen property 

charge. 

{¶ 57} The court of appeals reversed the trial court’s decision 

to not give the defendant credit for time served when it imposed 

the sentence for receiving stolen property. The court of appeals 

concluded that the trial court’s finding was speculative. 

Defendant had not yet been convicted and sentenced for the parole 

violation at the time the trial court sentenced him for the 
18

receiving stolen property conviction, and it could not be known 

at that time whether Defendant would be convicted and sentenced 

for the parole violation. The court found the proper approach 

was to credit the time served to the crime for which Defendant 

was convicted. Defendant would not then get credit for the same 

time against the parole violation, so as to avoid a “double credit.” 

{¶ 58} Unlike in Klein, the other matter upon which Defendant 

was held in jail at the same time he was held on the vandalism 

charge, the capital murder charges in Case No. 08-CR-523, do not 

arise from the same facts that give rise to the vandalism charge. 

 They are separate, unrelated matters. Even had the vandalism 

charge been dismissed, Defendant would continue to be held in jail 

on the capital murder charges. Therefore, because the time 

Defendant spent in jail awaiting trial on the capital murder charges 

in Case No. 08-CR-523 overlaps the time he spent in jail prior 

to trial on this vandalism charge, and does not arise from the 

same facts on which his sentence for vandalism is based, Defendant 

was not entitled to jail time credit against the sentence imposed 

on the vandalism conviction for the time he spent in jail awaiting 

trial. 

{¶ 59} Defendant’s third assignment of error is overruled. 

The judgment of the trial court will be affirmed. 
19

FROELICH, J. And HALL, J., concur. 

Copies mailed to: 

Andrew R. Picek, Esq. 

Keith O’Korn, Esq. 

Hon. Douglas M. Rastatter