[Cite as State v. Heineman, 2021-Ohio-643.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 CASE NO. 9-20-10 

 PLAINTIFF-APPELLEE, 

 v. 

 

RICHARD HEINEMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion Municipal Court 

Trial Court No. CRB 1903058 

Judgment Affirmed 

Date of Decision: March 8, 2021 

 

APPEARANCES: 

Carlos M. Crawford for Appellant 

Michael D. Swartz for Appellee 

 
Case No. 9-20-10 

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WILLAMOWSKI, P.J. 

{¶1} Defendant-appellant Richard Heineman (“Heineman”) brings this 

appeal from the judgment of the Marion Municipal Court. On appeal, Heineman 

claims that the trial court erred by admitting certain items of evidence, that the 

judgment is against the manifest weight of the evidence, and that he was denied the 

effective assistance of counsel. For the reasons set forth below, the judgment is 

affirmed. 

{¶2} On November 6, 2019, Deputy Kevin Davidson (“Davidson”) issued a 

citation to Heineman for violating the terms of a certain civil protection order 

(“CPO”) in violation of R.C. 2919.27. Doc. 1. A jury trial was held in the Marion 

Municipal Court on March 4, 2020. During the trial, the following testimony was 

presented. 

{¶3} The victim testified that on November 20, 2018, she obtained the CPO 

against Heineman which prohibited Heineman from having any contact with her. 

Tr. 10-11. The victim testified that she observed Heineman throwing yard debris 

into her yard. Tr. 12. The victim then went outside and threw the sticks into 

Heineman’s yard. Tr. 12. Heineman then came out, yelled at her, and threw the 

debris back into her yard, striking her with some of it. Tr. 12. The victim then 

called the police and Davidson came out and spoke with her and Heineman 

separately. Tr. 13-14. On cross-examination, the victim admitted that the yard 

debris that Heineman put in her yard was from her trees. Tr. 16. 
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{¶4} The victim’s son, Ryan Whittaker (“Whittaker”) testified that on the 

day in question, he was at the victim’s home. Tr. 19. He was looking out the kitchen 

window and saw Heineman pick up sticks and throw them towards the victim while 

yelling at her. Tr. 19. Whittaker started to go outside when the victim came in 

saying she was calling the police. Tr. 22. 

{¶5} Davidson testified that he was dispatched to the victim’s home where 

he spoke with her and Whittaker. Tr. 26. Davidson then went and spoke with 

Heineman who indicated he was tired of her sticks in his yard and admitted that he 

had originally put them back in the victim’s yard. Tr. 26. Davidson identified 

State’s Ex. 2 as a copy of the body camera footage from the investigation. Tr. 27. 

After speaking with Heineman, Davidson arrested him for violating the CPO. Tr. 

28. Before speaking to anyone, Davidson had confirmed that the CPO was still 

valid. Tr. 30. Davidson testified that Heineman had admitted to saying “I’m tired 

of this” to the victim. Tr. 31-32. The State then rested its case. 

{¶6} Heineman testified that he saw that the victim had thrown branches into 

his yard that he had returned to her yard as they had come from her tree. Tr. 39-40. 

Heineman testified that he said “I’m tired of this shit” to himself because every time 

her yard debris gets piled in his yard, he has to pay to have it hauled away. Tr. 39-

40. Heineman denied that he ever interacted with the victim. Tr. 41-42. According 

to Heineman, he knew the victim had security cameras, so he would not have done 

anything because she was recording it. Tr. 41. 
Case No. 9-20-10 

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{¶7} Following Heineman’s testimony, the defense rested. As rebuttal, the 

State replayed the body cam footage. Tr. 63-64. The jury returned a verdict of 

guilty. Doc. 23. The trial court accepted the verdict of guilty and sentenced 

Heineman to 180 days in jail with 175 days suspended and a $400 fine with $200 

suspended.1

 Doc. 20. Heineman appealed from this judgment. Doc. 30. On appeal, 

Heineman raises the following assignments of error. 

First Assignment of Error 

The court erred in permitting the State to re-play vest camera 

footage in rebuttal at [Heineman’s] trial, which resulted in an

unfair trial. 

Second Assignment of Error 

The court erred in admitting improperly authenticated body 

camera video footage 

Third Assignment of Error 

Defense counsel was ineffective for failing to object to the 

admission of vest cam footage in the absence of proper 

authentication 

Fourth Assignment of Error 

[Heineman’s] conviction was against the manifest weight of the 

evidence. 

In the interest of clarity, the assignments of error will be addressed out of order. 

 

 

1

 This Court notes that the trial court also ordered the defendant to “be evaluated for hearing assisting 

devices and acquire the recommended option.” How this was related to the offense charged does not 

appear in the record. However, the issue was not raised on appeal, so we need not address it. 
Case No. 9-20-10 

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Body Camera Footage

{¶8} In the second assignment of error, Heineman claims the trial court erred 

by admitting the body camera footage as it had not been properly authenticated. The 

admission of evidence is usually within the sound discretion of the trial court and 

will only be reversed upon a showing that the trial court abused that discretion. 

Peters v. Ohio State Lottery, Comm., 63 Ohio St.3d 296, 299, 587 N.E.2d 290 

(1992). “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.” Evid.R. 901(A). One way to 

authenticate evidence is to have a witness with knowledge of the item testify to what 

it is. Evid.R. 901(B)(1). A review of the record shows that Davidson identified the 

footage as coming from his body camera before the video was played. Tr. 27. 

Although the identification could have been clearer before the video was played, 

Davidson was very clear as to the accuracy of the video after it was shown. After 

the video was stopped at one minute seventeen seconds, which was all that was 

shown to the jury, Davidson testified that the video was a true and accurate depiction 

of what occurred. Tr. 30. Furthermore, Heineman makes no claim that the video 

was not what it was purported to be or that it was not authentic, merely that it was 

prejudicial. Based upon Davidson’s identification of the video as one with 

knowledge of it, the requirements of authentication were met. The second 

assignment of error is overruled. 
Case No. 9-20-10 

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Effectiveness of Counsel

{¶9} Heineman claims in the third assignment of error that his counsel was 

ineffective for failing to object to the admission of the body camera footage due to 

lack of proper authentication. 

In evaluating whether a petitioner has been denied effective 

assistance of counsel, this court has held that the test is “whether 

the accused, under all the circumstances, * * * had a fair trial and 

substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 

71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. 

When making that determination, a two-step process is usually 

employed. “First, there must be a determination as to whether 

there has been a substantial violation of any of defense counsel's 

essential duties to his client. Next, and analytically separate from 

the question of whether the defendant's Sixth Amendment rights 

were violated, there must be a determination as to whether the 

defense was prejudiced by counsel's ineffectiveness.” State v. Lytle

(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 

623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 

3135, 57 L.Ed.2d 1154. 

On the issue of counsel's ineffectiveness, the petitioner has the 

burden of proof, since in Ohio a properly licensed attorney is 

presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio 

St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64 

Ohio St.2d [107] at 110–111, 18 O.O.3d [348] at 351, 413 N.E.2d

[819] at 822. 

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The 

failure to prove either 1) a substantial violation or 2) prejudice caused by the 

violation makes it unnecessary for a court to consider the other prong of the test.” 

State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 

20. “To show prejudice, the defendant must show a reasonable probability that, but 
Case No. 9-20-10 

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for counsel's errors, the result of the proceeding would have been different.” State 

v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “The 

prejudice inquiry, thus, focuses not only on outcome determination, but also on 

‘whether the result of the proceeding was fundamentally unfair or unreliable.’” 

State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180 quoting 

Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). 

{¶10} Heineman claims that his counsel was ineffective for failing to object 

to the admission of the video because it was not properly authenticated. This Court 

addressed this issue above and found that the video was properly authenticated. 

Thus, counsel was not ineffective for failing to object to the admission of the video 

evidence due to failure to authenticate it. The third assignment of error is overruled. 

Rebuttal Evidence

{¶11} Heinemen claims in the first assignment of error that the trial court 

erred by allowing the video to be replayed during the State’s rebuttal. As discussed 

above, the admission of evidence is left to the sound discretion of the trial court. 

The trial court’s decision will not be reversed merely because this Court may have 

reached a different conclusion. Davis v. Butler Cty. Bd. of Revision, 12th Dist. No. 

CA2012-05-114, 2013-Ohio-3310, ¶ 27. 

{¶12} Generally out of court statements offered for the truth of the matter 

asserted are defined as hearsay. Evid.R. 801(C). However, a prior statement by a 

witness is not hearsay if it meets certain criteria. 
Case No. 9-20-10 

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The declarant testifies at trial or hearing and is subject to crossexamination concerning the statement, and the statement is * * * 

(b) consistent with declarant’s testimony and is offered to rebut 

an express or implied charge against declarant of recent 

fabrication or improper influence or motive * * *. 

Evid.R. 801(D)(1). 

{¶13} In this case, the victim and Whittaker both testified at trial and were 

subject to cross-examination. The victim testified that Heineman called her a name. 

Heineman testified that he did not call her a name. The State wanted to use the body 

camera footage to show that the victim’s and Whittaker’s trial statements were 

consistent with their prior statements. Davidson testified that the testimony given 

at the trial was consistent with what he was told during the investigation. Tr. 64. 

Reviewing the testimony of Heineman, he did not claim there was recent 

fabrication, but rather that the victim and Whittaker had been lying from the 

beginning about his actions. However, the trial court found that he had challenged 

the credibility of the witnesses and allowed the State to use the prior consistent 

statements to rehabilitate the witnesses. The decision as to whether to allow the 

evidence to be presented is left to the discretion of the trial court. Even though it 

could arguably have reached the opposite conclusion than the one it did, we do not 

find that the trial court abused its discretion in doing so, because it was not 

unreasonable, arbitrary, or unconscionable. The first assignment of error is 

overruled. 

 
Case No. 9-20-10 

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Manifest Weight of the Evidence

{¶14} When reviewing a judgment to determine if it is against 

the manifest weight of the evidence, an appellate court “review[s] 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 

clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered.” State v. Mendoza, 137 Ohio 

App.3d 336, 738 N.E.2d 822 (3d Dist. 2000). See, also, State v. Thompkins, 78 

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new trial should be granted only in 

the exceptional case in which the evidence weighs heavily against 

conviction. Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts 

as a “thirteenth juror,” due deference to the findings made by the fact-finder must 

still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22, 2013-Ohio-650, ¶ 

29. 

{¶15} Reviewing the evidence in this case, the testimony was that Heineman 

was under a no contact order with the victim. He was prohibited from even talking 

to her at all. Although Heineman denies that he said anything to the victim, he stated 

that he said he was tired of things. The victim testified that he called her a name. 

Whittaker testified that he saw Heineman yelling at the victim. The jury heard the 

witnesses and was able to weigh the credibility of each of them. Viewing the 

evidence as a whole, this Court does not find that the evidence weighs heavily 
Case No. 9-20-10 

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against conviction or that the jury clearly lost its way creating a manifest miscarriage 

of justice. The fourth assignment of error is overruled. 

{¶16} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Marion Municipal Court is affirmed. 

Judgment Affirmed 

ZIMMERMAN and SHAW, J.J., concur. 

/hls