[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 AppelleeCase No. 9-20-10

-2- WILLAMOWSKI, P.J. {¶1} Defendant-appellant Richard Heineman (“Heineman”) brings this appeal from the judgment of the Marion Municipal Court. On app eal, 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 th at he was denied the

effective assistance of counsel. For the reasons set forth bel ow, 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 violatio n of R.C. 2919.27. Doc. 1. A jur y trial wa s held in the Marion Municipal Court on March 4, 2020. During the trial, the follow ing testimony was presented. {¶3} The victim testified that on November 20, 2018, she obtained th e CPO against Heineman which prohibited Heineman from having any cont act with her.

Tr. 10-11. The victim testified that she observed Heineman thr owing 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 he r, and threw the debris back into her yard, striking her with some of it. Tr. 1 2. 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 admit ted that the yard debris that Heineman put in her yard was from her trees. Tr. 1 6.Case No. 9-20-10

-3- {¶4} The victim’s son, Ryan Whittaker (“Whittaker”) testified that o n 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 t he 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 a nd spoke with Heineman who indicated he was tired of her sticks in his yard a nd admitted that he had originally put them back in the victim’s yard. Tr. 26. Da vidson identified State’s Ex. 2 as a copy of the body camera footage from the inv estigation. Tr. 27. After speaking with Heineman, Davidson arrested him for violati ng 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 branc hes 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 him self because every time her yard debris gets piled in his yard, he has to pay to have i t 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 wou ld not have done anything because she was recording it. Tr. 41.Case No. 9-20-10

-4- {¶7} Following Heineman’s testimony, the defense rested. As rebutta l, the State replayed the body cam footage. Tr. 63-64. The jury retu rned a verdict of guilty. Doc. 23. The trial court accepted the verdict of guil ty 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 ad dressed out of order.

1 This Court notes that the trial court also ordered the defenda nt to “be evaluated for hearing assisting devices and acquire the recommended option.” How this was rela ted to the offense charged does not appear in the record. However, t he issue was not raised on app eal, so we need not address it.Case No. 9-20-10

-5- Body Camera Footage {¶8} In the second assignment of error, Heineman claims the trial co urt erred by admitting the body camera footage as it had not been properl y 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 abuse d 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 a s 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 th e item testify to what it is. Evid.R. 901(B)(1). A review of the record shows that D avidson identified the footage as coming from his body camera before the video was pla yed. 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 i t was shown. After the video was stopped at one minute seventeen seconds, which wa s 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 clai m that the video was not what it was purported to be or that it was not authenti c, 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

-6- Effectiveness of Counsel {¶9} Heineman claims in the third assignment of error that his couns el 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 “wh ether the accused, under all the circumstances, * * * had a fair tria l 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 syllab us. 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 counse l's essential duties to his client. Next, and analytically separat e 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.C t. 3135, 57 L.Ed.2d 1154. On the issue of counsel's ineffectiveness, the petitioner has t he 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) prejud ice caused by the violation makes it unnecessary for a court to consider the othe r 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 p robability that, butCase No. 9-20-10

-7- for counsel's errors, the result of the proceeding would have b een different.” State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Th e prejudice inquiry, thus, focuses not only on outcome determinat ion, 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 authe nticated. This Court addressed this issue above and found that the video was properl y 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 assignme nt 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 r ebuttal. As discussed above, the admission of evidence is left to the sound discretio n 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 , 12 th 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 p rior statement by a witness is not hearsay if it meets certain criteria.Case No. 9-20-10

-8- The declarant testifies at trial or hearing and is subject to c rossexamination concerning the statement, and the statement is * * * (b) consistent with declarant’s testimony and is offered to reb ut 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 Heinem an 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 tha t the testimony given at the trial was consistent with what he was told during the in vestigation. 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 th at he had challenged the credibility of the witnesses and allowed the State to use t he prior consistent

statements to rehabilitate the witnesses. The decision as to wh ether 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 on e it did, we do not find that the trial court abused its discretion in doing so, be cause it was not unreasonable, arbitrary, or unconscionable. The first assignme nt of error is

overruled.Case No. 9-20-10

-9- 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 th e 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 again st 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 Hei neman was under a no contact order with the victim. He was prohibite d 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 heavilyCase No. 9-20-10

-10- against conviction or that the jury clearly lost its way creati ng a manifest miscarriage of justice. The fourth assignment of error is overruled. {¶16} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of the Marion Municipal Court is affirmed. Judgment Affirmed ZIMMERMAN and SHAW, J.J., concur.

/hls