[Cite as State v. Clifford , 2020-Ohio-5095.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Crai g R. Baldwin, J. -vs- Case No. 19 CAA 12 0068 LINDSEY CLIFFORD Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 19 CRI 02 0143

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: October 28, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

MELISSA A. SCHIFFEL WILLIAM T. CRAMER Delaware Count y Prosecutin g Attorne y 470 Olde Worthin g ton Road, Suite #200 Westerville, Ohio 43082 R. JOSEPH VARVEL Assistant Prosecutin g Attorne y Delaware Count y Prosecutor’s Office 145 North Union Stree t Delaware, Ohio 43015Delaware Count y , Case No. 19 CAA 12 0068 2

Hoffman, P.J. {¶1} Appellant Lindsey Clifford appeals the judgment entered by the Delaware County Common Pleas Court convicting her of engaging in a patte rn of corrupt activity (R.C. 2923.32(A)(1)), additional prohibited activities ( R.C. 1 315.55(A)(1)), trafficking in cocaine ( R.C. 2925.03(A)(1)), and receiving stolen property (R .C. 2913.51(A)), and sentencing her to an aggregate prison term of four years. Appe llee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} During the summer of 2018, Appellant and her boyfriend, Terranc e Baker, resided in an apartment in Columbus, Ohio. Also living in the apartment were Donald Gorey, Shelley Hagerman, Antonio Estrada, and Leanna Jimenez. Jimenez moved into the apartment at the request of Appellant and Baker, who asked her “to do what’s going on at Home Depot” in order to make money. Tr. 422. {¶3} Gorey, Hagerman, Estrada, and Jimenez would travel to Home Depo t stores in the Columbus metro area, including stores in Delaware County, in a maroon Trailblazer owned by Appellant. Sometimes Appellant would driv e, and once or twice she went into Home Depot with the group. Baker did not travel with the group. The group would enter the store and steal Milwaukee and DeWalt power tool sets. At one point in time, the group went nearly every day to a Home Depot store in the area to steal power

tools. {¶4} The group would return the tools to the apartment, where they w ould find the value of the items on the internet. They would exchange th e items with Appellant and Baker for a percentage value of e ither cash or crack cocaine. Baker was in charge of the cash, but either Appellant or Baker would distribute crack coca ine in exchange for theDelaware Count y , Case No. 19 CAA 12 0068 3

power tools. Appellant kept track of the transactions in a log book. Baker then sold the stolen tools to a man the group knew only as “The Russian.” {¶5} During this time, Home Depot’s shoplifting policy allowed only asset protection specialists (APS) to apprehend suspects or enter the ft reports in the company’s internal database. Regular store employees were authorized to report incidents to the store manager, but were instructed not to stop suspects or call law enforcement. APS employees were to enter incidents into the database within 24 h ours of an incident. Absent corresponding violence, individual incidents are typical ly not reported to law enforcement; thus, 85-90% of incidents are not reported. {¶6} Jamie Mansfield and Sean Frame worked for Home Depot out of Mic higan as organized retail crime investigators. In July of 2018, they became aware of the group of theft incidents conducted by the people living in Appellant’ s apartment. The group was known inside the company as the Black Wig Group, based on Jimen ez sometimes wearing a black wig into the store as a disguise. {¶7} Mansfield and Frame traveled to Ohio in August, 2018, to furthe r investigate the series of thefts. On August 7, 2018, they c onducted surveillance outside a Delaware Home Depot store. They observed a vehicle later identified as Appellant’s vehicle arrive at the store. Appellant was driving the vehicle. Gorey and Ji menez entered the store and stole a Milwaukee portable tool power kit. Frame and Mansfield followed the group to another store in Franklin County. All three members of the gro up entered the store. Appellant came out of the store with a DeWalt tool kit. She dr ove the Trailblazer to the front of the store. Gorey and Jimenez pushed a cart out of the store at a rapid pace,Delaware Count y , Case No. 19 CAA 12 0068 4

loaded items from the cart into the Trailblazer, and drove away . A cashier and some customers came out of the store after seeing what was happening

. {¶8} Frame and Mansfield attempted to follow the Trailblazer, but lo st it in traffic. They eventually located the vehicle at the apartment complex wh ere Baker and Appellant lived. They set up surveillance from a nearby Taco Bell parkin g lot. From there, Frame and Mansfield watched Gorey, Jimenez and Baker carrying DeWalt and Milwaukee power tools from the apartment to the Trailblazer. Shortly thereafte r, Baker drove away in the Trailblazer. Frame and Mansfield attempted to follow, but lost the Trailblazer near a highway on-ramp. {¶9} Surveillance continued throughout the next week, during which t ime the group continued to steal tools from Home Depot stores throughou t the Columbus area. On August 17, 2018, law enforcement obtained and executed a sea rch warrant on the apartment. Police seized a marijuana bong, a marijuana grinder , loose marijuana, crack pipes, Chore Boy, a syringe, digital scales, and a Spider secur ity device. From the bedroom shared by Baker and Appellant, they seized notebooks co ntaining UPC codes or model numbers for tools. One of the notebooks had Appellant ’s name written on it. They also seized a Milwaukee charger and battery. {¶10} Gorey, Jimenez and Appellant were arrested. Appellant called B aker from the jail, and Baker told Appellant not to “mention anything abo ut anything.” When she called him again, Baker told Appellant he “was thinking about s hitting his head” and was worried police had his phone. Appellant told Baker to get out of town. {¶11} Gorey and Jimenez agreed to cooperate with the police in exchan ge for plea agreements. Appellant and Baker were charged by joint ind ictment with engagingDelaware Count y , Case No. 19 CAA 12 0068 5

in a pattern of corrupt activity (R.C. 2923.32(A)(1)), addition al prohibited activities ( R.C. 1315.55(A)(1)), trafficking in cocaine ( R.C. 2925.03(A)(1)), t rafficking in heroin (R.C. 2925.03(A)(1)) and receiving stolen property (R.C. 2913.51(A)). Appellant was additionally charged with robbery (R.C. 2911.02(A)(3)). The cas e proceeded to joint bench trial in the Delaware County Common Pleas Court. Followi ng the presentation of evidence, the court dismissed the charge of trafficking in hero in. The court found Appellant not guilty of robbery. Appellant was convicted of th e remaining charges. The court found the trafficking in cocaine and receiving stolen pro perty convictions merged into the additional prohibited activities conviction, and the S tate elected to have Appellant sentenced for additional prohibited activities. The court sent enced Appellant to four years incarceration for engaging in a pattern of corrupt activity and to thirty months incarceration for additional prohi bited activities, to be served concurrently

. {¶12} It is from the November 21, 2019 judgment of conviction and sen tence Appellant prosecutes her appeal, assigning as error:

APPELLANT’S RIGHT OF CONFRONTATION WAS VIOLATED BY

THE ADMISSION OF HEARSAY STATEMENTS FROM PERSONS WHO

CLAIMED TO WITNESS SHOPLIFTING AND STORE THEFT REPORTS

DETAILING THE ALLEGED SHOPLIFTING.

{¶13} Appellant argues the admission of hearsay evidence violated her right to confront the witnesses against her. She specifically argues te stimony concerning the observations of store employees, who did not testify, of thefts which took place inside theDelaware Count y , Case No. 19 CAA 12 0068 6

stores, both as relayed to Frame and Mansfield and as detailed in the Risk 360 reports prepared by Home Depot employees, violated her right to confron t the witnesses against

her. {¶14} The Confrontation Clause of the Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right * * * to be con fronted with the witnesses against him.” Out-of-court statements by a witness which are te stimonial in nature are barred, under the Confrontation Clause, unless the witness is u navailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). If testimo ny qualifies as nonhearsay, it does not implicate the Confrontation Clause. Id . at 59, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); State v. Maxwell , 139 Ohio St. 3d 12, 9 N.E.3d 930, 2014-Ohio-1019, ¶131. Evid. R. 80 1(C) defines hearsay as “a statement, other than one made by the declarant while testif ying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” We review trial court rulings which implicate the Confrontation Clause de novo. State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97, citing State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967), and United States v. Henderson , 626 F.3d 326, 333 (6th Cir. 2010). {¶15} We note the surveillance videos and photographs admitted into e vidence are not hearsay, as there are no statements in either the video s or the photographs. Because they are not hearsay, they do not implicate the Confron tation Clause. Crawford,

supra . However, the trial court also admitted testimony concerning employees’ observations of thefts inside the store, as well as the Risk 36 0 reports prepared by HomeDelaware Count y , Case No. 19 CAA 12 0068 7

Depot employees which included SKU numbers, the value of the it ems stolen, and descriptions of the thefts and the persons involved. The court found the testimony and reports were admissible as present sense impressions and busine ss records, and thus exceptions to the hearsay rule pursuant to Evid. R. 803(1) and (6). The court found their admission did not violate the Confrontation Clause, as they wer e non-testimonial in

nature. {¶16} In Crawford , the United States Supreme Court suggested business records are “by their nature” nontestimonial. Crawford at 56, 124 S.Ct. 1354. And subsequently

in State v. Craig , 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 82, the Supreme Court of Ohio held business records “are not ‘testimoni al in nature because they are prepared in the ordinary course of regularly conducted busi ness and are “by their nature” not prepared for litigation.’” {¶17} However, in Melendez-Diaz v. Massachusetts , 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the items of evidence at issue we re reports by a company which provided forensic analysis on seized substances to establ ish whether they were illegal. The United States Supreme Court held despite the fact the records were kept in the regular course of the company's business, the results of fo rensic drug testing were testimonial—they were requested by the police and prepared for presentation at trial, and were therefore subject to exclusion under the Confrontation Cla use:

Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confro ntation

Clause. As we stated in Crawford : “Most of the hearsay exceptions coveredDelaware Count y , Case No. 19 CAA 12 0068 8

statements that by their nature were not testimonial--for examp le, business records or statements in furtherance of a conspiracy.” Business and public records are generally admissible absent confrontation not becau se they qualify under an exception to the hearsay rules, but because--h aving been created for the administration of an entity's affairs and not f or the purpose of establishing or proving some fact at trial--they are not tes timonial. Whether or not they qualify as business or official records, th e analysts' statements here--prepared specifically for use at petitioner's trial--were testimony against petitioner, and the analysts were subject to confrontation

under the Sixth Amendment.

{¶18} (Citations omitted.) Id . at 324, 129 S.Ct. 2527. Because the analyst who created the records did not testify and was not subject to cros s-examination, the forensic analysis was inadmissible because its admission violated the Co nfrontation Clause. Id. {¶19} Thereafter, in Bullcoming v. New Mexico , 564 U.S. 647, 663-65, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the Court held admission of the r eport of a defendant's blood-alcohol level violated the defendant's right to confront the analyst who prepared the report. The Court held the report was testimonial because it wa s a statement made in order to prove a fact at defendant's criminal trial, and the te stimony of a substitute analyst who did not perform or observe the reported test did not satisf y the right to confrontation. The lower court held the surrogate testimony was “adequate to s atisfy the Confrontation Clause in this case because [the actual analyst] ‘simply transc ribed the resul[t] generated by the gas chromatograph machine,’ presenting no interpretation and exercising noDelaware Count y , Case No. 19 CAA 12 0068 9

independent judgment,” and the defendant's “true accuser” was “ the machine, while [the testing analyst's] role was that of ‘mere scrivener.’ ” Id . at 659-60, 131 S.Ct. 2705. The Supreme Court disagreed, noting the surrogate analyst's testimo ny “reported more than a machine-generated number,” and the surrogate could not convey what the original analyst knew and observed, or expose any lapses or inaccuracies by the original analyst.

Id . at 660, 131 S.Ct. 2705. {¶20} In the instant case, we find the SKU numbers and the value of i tems taken, included in the Risk 360 reports, were non-testimonial in natur e. These figures served a business purpose of Home Depot separate and apart from their po tential use for prosecution, as these figures were necessary for inventory and accounting records of the stores impacted. However, we find the descriptions of the thef ts included in the reports and relayed orally to Frame and Mansfield were testimonial in n ature. Although there was evidence most of the Risk 360 reports generated by the comp any do not result in prosecution, we find no business use for the descriptions of th e perpetrators of theft offenses in the store other than the potential use for apprehen sion and prosecution. We find this particularly true in the instant case, where some of these observations were made subsequent to Frame and Mansfield traveling from Michigan to Oh io for the express purpose of investigating and apprehending the suspects involved in the Black Wig Group. In fact, shortly after arriving in Ohio, Frame and Mansfield ma de contact with law enforcement in Delaware County concerning their investigation. We find these descriptions were testimonial in nature, and their admission th erefore violated Appellant’s right to confront the witnesses against her.Delaware Count y , Case No. 19 CAA 12 0068 10

{¶21} But even in cases where the defendant has established a violati on of rights under the Confrontation Clause, the Supreme Court of Ohio has c onsistently applied a harmless-error analysis to determine whether the issue prejudic ed the defendant. See

McKelton at ¶ 192, quoting Harrington v. California , 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284, (1969). {¶22} Crim.R. 52(A) defines harmless error in the context of criminal cases and provides: “Any error, defect, irregularity, or variance which d oes not affect substantial rights shall be disregarded.” Under the harmless-error standard of review, “the government bears the burden of demonstrating that the error did not affect the substantial rights of the defendant.” State v. Perry , 101 Ohio St.3d 118, 2004–Ohio–297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano , 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). First, it must be determined whether the defendant was preju diced by the error, i.e., whether the error had an impact on the verdict. Se cond, it must be determined whether the error was not harmless beyond a reasonable doubt. L astly, once the prejudicial evidence is excised, the remaining evidence is weig hed to determine whether it establishes the defendant's guilt beyond a reasonable doubt. State v. Harris, 142 Ohio St.3d 211, 2015–Ohio–166, 28 N.E.3d 1256, ¶ 37. {¶23} The instant case was a bench trial, in which the trial court ex plained at length its reasoning for finding Appellant guilty. The trial c ourt based its finding of guilt almost exclusively on the testimony of Gorey and Jimenez. Whil e Appellant argues their testimony is not credible, the trial court took note of the pot ential credibility issues with their testimony, and explained its reasons for finding the test imony in the instant case to be credible. Tr. 1506-1511. Nothing in the trial court’s expl anation of its reasons forDelaware Count y , Case No. 19 CAA 12 0068 11

finding Appellant guilty suggests the court relied on the Risk 360 reports or the descriptions of the offenses and perpetrators provided by emplo yees of Home Depot. Tr. 1511-1521. The trial court further had the opportunity to view the photos and videos, in which both Gorey and Jimenez identified themselves, Appellant, and others in the group stealing items from Home Depot. In addition, Frame and Mansfiel d, who both testified at trial, testified they observed Appellant driving the group to H ome Depot stores where thefts were reported, and observed Appellant enter a store and walk out with a portable power tool kit. We find admission of the Risk 360 reports and testimony concerning observations of employees of the Home Depot stores to be harmle ss in the instant case. {¶24} The assignment of error is overruled. {¶25} The judgment of the Delaware County Common Pleas Court is affir med.

By: Hoffman, P.J. Gwin, J. and Baldwin, J. concur