[Cite as State v. Ollison, 2016-Ohio-8269.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 16AP-95 

v. : (M.C. No. 15CRB-3117)

Yesenia Ollison, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 20, 2016 

 

On brief: Richard C. Pfeiffer, Jr., City Attorney, and Orly 

Ahroni, for appellee. Argued: Orly Ahroni. 

On brief: Yeura R. Venters, Public Defender, and Timothy 

E. Pierce, for appellant. Argued: Timothy E. Pierce.

 

APPEAL from the Franklin County Municipal Court 

SADLER, J. 

{¶ 1} Defendant-appellant, Yesenia Ollison, appeals from the February 8, 2016 

judgment entry of the Franklin County Municipal Court sentencing her to two years of 

probation after the jury's finding of guilt on charges of assault and disorderly conduct. 

For the following reasons, we affirm the trial court judgment. 

I. BACKGROUND 

{¶ 2} On February 9, 2015, criminal complaints were filed alleging appellant 

committed one count of assault, a violation of R.C. 2903.13(A), and one count of 

disorderly conduct, a violation of Columbus City Code 2317.11(A)(1), arising out of a 

December 26, 2014 parking lot incident in which appellant purportedly struck another 

woman, Jermaria Clardy, with her fist. Appellant pled not guilty to the charges. 
No. 16AP-95 2 

{¶ 3} On February 1, 2016, appellant filed a motion in limine to preclude appellee 

from introducing a cell phone recording of a security video of the incident. Appellant's 

motion asserted that the video violated Evid.R. 901, 403, and "the Completeness 

Doctrine." (Mot. in Lim. to Exclude Video at 1.) Appellant attached to the motion in 

limine a copy of a magistrate's decision denying Clardy's civil stalking protection order 

from May 2015. Prior to commencing the trial, the trial court heard arguments from the 

parties regarding the motion in limine and the admissibility of the cell phone recording of 

the security video and overruled the motion while noting additional arguments would be 

entertained by the court at the time of a proffer of the recording. The case proceeded to a 

jury trial. 

{¶ 4} The following facts are not in dispute. On December 26, 2014, at around 

9:20 p.m., Clardy drove her car to a market with her daughter, niece, and nephew in the 

backseat and her teenage brother, Markadom Banks, in the passenger seat. Clardy parked 

her car, entered the market, and shopped for groceries while her brother and the children 

remained in the car. As she returned from the market and attempted to reenter her car, 

several females dragged her from her car and attacked her in the parking lot of the 

market, resulting in injuries to Clardy's face and arms. Whether appellant was one of 

those females who participated in the attack was the central issue in dispute at trial. 

{¶ 5} According to Clardy, appellant attacked her as part of a group retaliating for 

a fight that occurred the previous day between Clardy and a woman named Cynthia 

Aponte. Clardy testified that she personally knows Aponte through Charles McGinnis, the 

father of Clardy's daughter. She assumed Aponte and McGinnis were in a romantic 

relationship and testified that Aponte would call her and that the calls evolved from 

asking about Clardy's relationship with McGinnis to threatening Clardy and her child. In 

the beginning of December 2014, Clardy pursued a protection order against Aponte but 

testified that the protection order was not served on Aponte because of an inaccurate 

address. 

{¶ 6} On Christmas day 2014, Clardy and her daughter were at Clardy's father's 

house. McGinnis stopped by alone to give gifts to their daughter, at which time Clardy 

stepped outside to avoid trouble and have a cigarette. According to Clardy, Aponte 

arrived in another car, the two women exchanged words, and Aponte exited her vehicle 
No. 16AP-95 3 

and initiated a physical fight with Clardy. A police officer saw the altercation and took a 

report but did not make any arrests. 

{¶ 7} Clardy testified that the next day, December 26, 2014, she went to her 

mother's house after work to pick up her daughter, niece, and nephew. She noticed a 

vehicle circling her mother's block but did not recognize the vehicle and thought the 

driver was lost. Clardy then took her brother, Banks, and the three children to McGuffey 

Market, which was located about 10 or 15 minutes away from her mother's house. Clardy 

and her brother noticed a vehicle following her car from a distance. Once at the market, 

Clardy went inside the store while her brother and the children stayed in the car. Clardy 

made her purchases and then noticed a crowd by the door to the market, in the parking 

lot, and by the vehicles. Clardy walked to her vehicle but before she could open her door, 

appellant ran up and attacked Clardy, striking her, and the two began fighting. Clardy 

was then dragged to the middle of the parking lot, where several more people assaulted 

her. Clardy testified that she was beaten, kicked, and hit in the head with an object and 

that she could hear her daughter's screams during the attack. Clardy's brother was 

eventually able to grab her and escort her to her vehicle. Clardy called the police and 

returned to her father's house, "hysterical" and bleeding. (Tr. Vol. I at 172.) 

{¶ 8} Police arrived and Clardy told police that Aponte and some of Aponte's 

relatives, including "Jessie," assaulted her. (Tr. Vol. I at 173.) At that time, Clardy did not 

know the actual names of the attackers; rather, she recognized several faces, including 

appellant, whom she knew at that time by the name of Jessie Aponte, and another one of 

their relatives, whom she later found out was named Michella Akram. After the attack, 

she received phone calls from Aponte whereby Aponte laughed and told her she got what 

she deserved and that "it's not over." (Tr. Vol. I at 173.) When Clardy started naming 

Aponte and Jessie's names, they hung up the phone. 

{¶ 9} The following day, December 27, 2014, Clardy and her father returned to 

the market and asked to see video footage of the attack. The store would not provide a 

copy of the surveillance footage to Clardy but allowed her to record the footage with her 

cell phone as the footage played on a television in the market. Clardy then went to FedEx 

and had the recording from her cell phone put on a disk. She presented the disk 

containing the recording of the market surveillance footage to the prosecutor's office the 
No. 16AP-95 4 

following Monday morning. Clardy testified that she reviewed the contents of the disk, 

that it fairly and accurately depicts her being assaulted at the market on December 26, 

2014, and confirmed that she was present on the scene at the time of the incident depicted 

in the video. Appellant objected to use and admission of the video into evidence in the 

trial, arguing that the video violated Evid.R. 901(B)(1), the Completeness Doctrine, and 

Evid.R. 403. The trial court overruled appellant's objection, finding the video admissible. 

Appellee played the video for the jury, and Clardy testified that she had no control over 

skips that occurred in the video footage. Clardy identified her vehicle, herself, her 

brother, appellant, Aponte, Akram, and McGinnis in the video. Clardy testified that 

appellant was the person in the video wearing jeans and a grey "hoodie" sweatshirt with 

short or shoulder length hair. (Tr. Vol. I at 202.) Clardy testified that at the 37-second 

mark of the video, Clardy was on the ground with appellant at the top of her torso and 

Aponte near her lower body, and at the 1 minute, 3-second mark, Clardy is "getting 

dragged." (Tr. Vol. I at 204.) Clardy additionally identified appellant at the 2-minute, 2-

second mark walking toward Clardy as Clardy returned to her car. 

{¶ 10} Clardy took the video to the prosecutor's office the following Monday 

morning, December 29, 2014, and made a report. At that time, Clardy knew Aponte's 

name and thought appellant was named Jessie Aponte. According to Clardy, she was 

familiar with appellant's face before the attack because Clardy had viewed pictures of 

appellant with Aponte on Aponte's Facebook page with appellant's nickname tagged to 

the picture. The prosecutor's office could not find the name Jessie Aponte in a database 

or through a special unit and gave Clardy 30 days to locate the accurate name in order to 

process the charges against her. Clardy found out appellant's real name through mutual 

friends and social media. She saw a picture online with appellant's real name, and she 

was sure the person in the picture was the same person who attacked her. In the 

courtroom, Clardy identified appellant as the person who attacked her, testified that 

"[t]here is no doubt in my mind" that appellant is the first person who attacked her, and 

specified appellant as the main individual who attacked her. (Tr. Vol. I at 169.) 

{¶ 11} On cross-examination, Clardy testified that she has not had other problems 

with people following her, threatening her, or attempting to fight her. Appellee objected 

to the relevance of the questioning, and appellant indicated her intent to introduce 
No. 16AP-95 5 

evidence that there might be other people Clardy has grudges with and written statements 

where Clardy accused other people of following her and threatening her in the past. 

Appellee responded by noting that appellant had not provided the document, a 2011 

protection order, during discovery by arguing that the document constituted extrinsic 

evidence to attack character, and with no other ties between the previous event years 

earlier and the current attack, the information was prejudicial and confusing to the issue. 

The trial court sustained appellee's objection and disallowed further questioning. 

{¶ 12} Banks testified that he witnessed appellant attack his sister, Clardy, on 

December 26, 2014 outside the market. He was in Clardy's car with his nieces and 

nephew when a crowd of people started gathering around the store. According to Banks, 

as Clardy was about to enter her car, appellant ran up to her swinging and hit her. Clardy 

then was dragged to the middle of the parking lot. Banks got out of the passenger side 

door of the car, but two adult men approached and told him "[i]t's a one-on-one fight," 

and one man patted his side in such a way that Banks believed he had a weapon. (Tr. Vol. 

II at 278.) Banks then saw Aponte and Akram jump on Clardy; Banks testified he knew 

both Aponte and Akram prior to the fight. When the men were gone, Banks tried to stop 

the fight and pulled on his sister to free her from appellant, who had Clardy by the hair 

and was punching her face. He was "face to face" with appellant, about one foot away 

from her, and got a "pretty good look" at appellant. (Tr. Vol. II at 282, 307.) At the time 

of the incident, Banks knew appellant by the name of Jessie. Banks identified appellant in 

the courtroom as the person who hit his sister and agreed that he was certain that 

appellant was the person who attacked his sister. 

{¶ 13} Over appellant's renewed objection, appellee again played the video and 

Banks confirmed that the video is a true and accurate depiction of the attack that 

happened to his sister on December 26, 2014. Banks identified his sister, appellant, 

Aponte, Akram, and himself in the video. He described appellant as wearing a grey or 

white jacket and testified that appellant was the person pinning down his sister and 

punching her. According to Banks, after the fight was over and he was attempting to get 

Clardy in the car, appellant continued to try to hit her. During this time, Banks was one or 

two-feet away from appellant. 
No. 16AP-95 6 

{¶ 14} On cross-examination, Banks testified that he did not know Aponte had a 

sister and agreed that he looked at Aponte's Facebook page with Clardy before going to 

the prosecutor's office with her. He agreed that he never made a statement to police. 

{¶ 15} Ryan Craig, an officer with the Columbus Division of Police, testified to 

responding to a call about an assault on December 26, 2014 and interviewing Clardy and 

her brother. According to Craig, Clardy told him she knew two of her attackers, Cynthia 

Aponte and a person with the "street name" Jessie Aponte and did not know the names of 

her other attackers at that time. (Tr. Vol. II at 339.) She described the car the attackers 

left in as a white Honda CRV and gave him two license plate numbers. The license plate 

numbers "were run through LEADS without a match." (Tr. Vol. II at 311.) Craig ran a 

third license plate number given by Clardy to prosecutors through LEADS and received a 

match with a white Honda CRV. On cross-examination, Craig testified that to his 

knowledge, neither a live or photo lineup was conducted in this case. He and other 

officers did not go to the market to investigate or retrieve the surveillance video. As to his 

interview with Clardy, Craig testified that she "gave very vague physical descriptions of 

three of the five, but two she knew by name." (Tr. Vol. II at 333.) The license plate that 

garnered a LEADS match indicated that a leasing company owned the vehicle. 

{¶ 16} Thomas Watkins, a detective with the Columbus Division of Police, testified 

to investigating the December 26, 2014 incident at the market. Watkins spoke to 

appellant by phone in January 2015, and appellant told him that she knew Clardy through 

Facebook and that she was not involved in the incident. At some point, Watkins reviewed 

a video of the incident but did not remember how he was provided the video. As part of 

his investigation, Watkins did not prepare any live or photo lineups. 

{¶ 17} Appellee submitted 13 photographs as exhibits, which were admitted 

without objection, and the DVD, which was admitted over objection. Appellee then rested 

its case-in-chief. Appellant moved for a judgment of acquittal under Crim.R. 29, which 

the court overruled. 

{¶ 18} The defense then called two alibi witnesses, Mary Butcher and India Taylor, 

to testify. According to Butcher, a childhood friend of appellant who has known her for 

over 25 years and sees her regularly, appellant's full name is Yesenia Jessie Aponte, and 

Ollison is appellant's married name. Cynthia Aponte is appellant's niece and had lived 
No. 16AP-95 7 

with appellant either in 2013 or 2014 and moved out due to having issues with her 

boyfriend, McGinnis. Cynthia Aponte has one sister named Jessica Aponte. Butcher 

testified that on December 26, 2014, she went to appellant's house for dinner and to hang 

out, arriving between 4:00 and 4:30 p.m. and staying until 11:00 p.m. Neither appellant 

nor Butcher left appellant's home at any point during that span. Also present in the home 

were appellant's children and appellant's boyfriend, Jawan, and Taylor, among some 

other people Butcher did not know. 

{¶ 19} According to Taylor, who is also appellant's childhood friend, on 

December 26, 2014, Taylor went to appellant's house at about 5:00 p.m. to hang out with 

appellant and Butcher and left appellant's house at about 2:00 a.m. In addition to 

appellant and Butcher, appellant's boyfriend and a couple of other people were at 

appellant's home that evening. Taylor and appellant did not leave appellant's house the 

entire evening. On cross-examination, Taylor testified that since childhood, she had 

known appellant by the name of Jessie. 

{¶ 20} Appellant then testified in her own defense. Appellant stated her legal 

name on her birth certificate is Yesenia Jessie Aponte, and that she goes by the name of 

Jessie. She kept the last name Ollison, her former husband's last name, to have the same 

last name as her children. Regarding her niece, Cynthia Aponte, appellant testified that 

she "pretty much raised her" because her sister was not around and that Cynthia had lived 

with her for almost one year in 2013 until her problems with her boyfriend, McGinnis, led 

to appellant not allowing Cynthia in her home anymore. (Tr. Vol. II at 395.) Cynthia did 

not live with appellant on the day of the alleged assault. Appellant testified that she lives 

on the east side and is familiar with McGuffey Market and that her sister, Cynthia's mom, 

lives near the market. 

{¶ 21} According to appellant, she was at her own home on the evening of the 

incident hanging out with her close friends, children, and boyfriend, and she did not 

leave. Her friends came over around 4:00 or 5:00 p.m., and the last friend present, 

Taylor, did not leave until 1:00 or 2:00 a.m. She knew of Clardy through Cynthia but had 

never met her or talked to her. 

{¶ 22} On cross-examination, appellant testified that Cynthia did not talk to her 

about the fight she had with Clardy on Christmas day or what happened at McGuffey 
No. 16AP-95 8 

Market. Appellant confirmed that at the time of the incident, she had a Facebook page 

that stated her name as Jessie Aponte and that Yesenia Ollison is her government name 

that "wouldn't be anywhere except for [her] ID or a bill collector." (Tr. Vol. II at 409.) 

Appellant agreed that appellee's exhibits 16 and 17 were fair and accurate copies of her 

Facebook profile page, and those exhibits were admitted without objection. 

{¶ 23} Appellant rested her case. The jury found appellant guilty of both the 

assault charge and the disorderly conduct charge, and on appellee's request, the trial court 

proceeded directly to sentencing. Reflecting its sentencing decision in court, in an entry 

dated February 8, 2016, the trial court stated: 

Defendant was found guilty by the jury of Assault and 

Disorderly Conduct. Defendant was sentenced to 180 days in 

jail, credit for 2, 28 days forthwith, 150 days suspended. 

Defendant is place on probation for a period of 2 years with 

the following conditions: Stay away from Jermaria Clardy and 

Markadom Banks, no same or similar, no further acts of 

violence, submit to alcohol/drug screens, do not report to 

probation under the influence of alcohol or drugs of abuse, 

and assessment/counseling as deemed appropriate by 

probation. 

{¶ 24} In a subsequent entry dated February 12, 2016, the trial court "affirm[ed] 

the sentence." (Feb. 12, 2016 Entry at 1.) Appellant filed a timely appeal. 

II. ASSIGNMENTS OF ERROR 

{¶ 25} Appellant submits four assignments of error for our review: 

[1.] Appellant's rights against double jeopardy and to due 

process of law under the Fifth and Fourteenth Amendments of 

the United States Constitution and Article I, Sections 1, 10 and 

16 of the Ohio Constitution were violated when the jury 

returned a verdict convicting her of both assault, a violation of 

R.C. 2903.13(A), a misdemeanor of the first degree, as well as 

the lesser-included offense of disorderly conduct, a violation 

of Columbus City Code Section 2317.11(A)(1), a misdemeanor 

of the fourth degree. 

[2.] The lower court erred by admitting into evidence State's 

Exhibit 14 (the surveillance video recording) in violation of 

Evid. R. 901, 1002, 1003, and 403(A). This resulted in a 

violation of Appellant's right to a fair trial under the Due 

Process Clauses of the Fourteenth Amendment to the United 
No. 16AP-95 9 

States Constitution and Article I, Sections 1 and 16 of the Ohio 

Constitution. 

[3.] Appellant's right to a fair trial under the Due Process 

Clauses of the Fourteenth Amendment of the United States 

Constitution and Article I, Sections 1 and 16 of the Ohio 

Constitution were violated when prosecution witnesses 

Jermaria Clardy and Markadom Banks offered lay opinion 

testimony that Appellant was depicted in State's Exhibit 14 

(the surveillance video recording) which invaded the province 

of the jury. 

[4.] The trial court erred when it precluded appellant from 

impeaching prosecution witness Jermaria Clardy via Evid. R. 

613 and Evid. R. 616. This denied Appellant her right to a fair 

trial under the Due Process Clauses of the Fourteenth 

Amendment of the United States Constitution and Article I, 

Sections 1 and 16 of the Ohio Constitution. 

III. DISCUSSION 

A. First Assignment of Error 

{¶ 26} In her first assignment of error, appellant contends that her rights against 

double jeopardy and to due process of law were violated "when the jury convicted her of 

assault and disorderly conduct, the latter being a lesser-included offense of the former." 

(Appellant's Brief at 1.) For the following reasons, we overrule appellant's first 

assignment of error. 

{¶ 27} We note that appellant did not ask for jury instructions or otherwise raise 

these issues throughout trial or at sentencing. Matters not objected to at the trial court 

level are reviewed under the plain error standard. Crim.R. 52(B). "In order to have plain 

error under Crim.R. 52(B), there must be an error, the error must be an 'obvious' defect in 

the trial proceedings, and the error must have affected 'substantial rights,' meaning that 

the error must have affected the outcome of the trial." State v. Ryan, 10th Dist. No. 

08AP-481, 2009-Ohio-3235, ¶ 18, discretionary appeal not allowed, 123 Ohio St.3d 1496, 

2009-Ohio-6015, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002). "Plain error is to 

be used 'with the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.' " Barnes at ¶ 18, quoting State v. Long, 53 Ohio St.2d 91 

(1978), paragraph three of the syllabus. A violation of double jeopardy constitutes plain 
No. 16AP-95 10 

error. State v. Dunham, 4th Dist. No. 04CA2941, 2005-Ohio-3642, ¶ 55. See also State v. 

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31. 

{¶ 28} The Double Jeopardy Clause of the United States Constitution, applied to 

the states through the Fourteenth Amendment, and additionally guaranteed by Article I, 

Section 10 of the Ohio Constitution, provides a defendant three protections: it protects 

against a second prosecution for the same offense after acquittal, it protects against a 

second prosecution for the same offense after conviction, and it protects against multiple 

punishments for the same offense. Ryan at ¶ 19, citing State v. Brown, 119 Ohio St.3d 

447, 2008-Ohio-4569, ¶ 10, certiorari denied, 129 S.Ct. 1356 (2009), citing United States 

v. Halper, 490 U.S. 435, 440 (1989); Ohio v. Johnson, 467 U.S. 493, 498 (1984). 

{¶ 29} "[W]hen multiple punishments are imposed in the same proceeding, the 

Double Jeopardy Clause does no more than prevent the sentencing court from prescribing 

greater punishment than the legislature intended." State v. Rogers, 143 Ohio St.3d 385, 

2015-Ohio-2459, ¶ 16. Thus, "[w]hile the Double Jeopardy Clause may protect a 

defendant against cumulative punishments for convictions on the same offense, the 

Clause does not prohibit the State from prosecuting respondent for such multiple offenses 

in a single prosecution." Johnson at 500. "In the case of multiple punishments, a 

defendant is protected only from multiple punishments that were not intended by the 

legislature." State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 8; Johnson at 499. 

{¶ 30} Appellant's argument is predicated on her disorderly conduct conviction per 

Columbus City Code 2317.11(A)(1), comprising a lesser-included offense of R.C. 

2903.13(A) assault. Consistent with our determination in State v. Keith, 10th Dist. No. 

08AP-28, 2008-Ohio-6122, ¶ 27-34, and considering State v. Evans, 122 Ohio St.3d 381, 

2009-Ohio-2974, paragraph two of the syllabus, we agree. Assault carries a greater 

penalty than disorderly conduct. Assault requires that the offender causes or attempts to 

cause the victim physical harm, an element not required by disorderly conduct, and 

assault cannot be committed without also committing disorderly conduct "[b]ecause a 

person will necessarily cause inconvenience, annoyance or alarm to another by causing or 

attempting to cause them physical harm, and because recklessly is a lesser mental state 

than knowingly." Keith at ¶ 32; see Evans at paragraph two of the syllabus. 
No. 16AP-95 11 

{¶ 31} The parties essentially debate the point in time a double jeopardy violation 

occurs with regard to convictions for both a greater and lesser-included offense in the 

same proceeding. Both parties agree that a jury found appellant guilty of both offenses 

and that the trial court sentenced appellant only on the assault charge. (Appellant's Brief 

at 28; Appellee's Brief at 16.) However, appellant argues that her double jeopardy rights 

were violated at the point the jury returned guilty verdicts for both the greater and lesserincluded offense regardless of imposition of sentence. Appellee argues that for purposes 

of double jeopardy, a conviction occurs at sentencing, and in this case, the trial court only 

sentenced appellant and therefore convicted her of the assault charge.1 For the following 

reasons, we disagree with appellant's argument. 

{¶ 32} The double jeopardy protection prohibiting successive prosecution and 

cumulative punishment applies in the context of greater and lesser-included offenses. 

Brown v. Ohio, 432 U.S. 161 (1977). However, the presence of lesser and greater offenses, 

alone, does not control whether a double jeopardy violation for multiple punishments 

within a single proceeding occurs. As an example, although gross sexual imposition is a 

lesser-included offense of rape, a defendant may be properly charged with and convicted 

of both offenses in one proceeding in a scenario that includes distinct acts and/or victims. 

See, e.g., State v. Reid, 8th Dist. No. 83206, 2004-Ohio-2018, ¶ 75, discretionary appeal 

not allowed, 103 Ohio St.3d 1428, 2004-Ohio-4524 (concluding that lesser-included 

offense of gross sexual imposition did not merge with rape where one was not incidental 

to the other). 

{¶ 33} Rather, in Ohio, the General Assembly codified double jeopardy protections 

in the context of multiple punishments for the same offense in R.C. 2941.25. State v. Ruff, 

143 Ohio St.3d 114, 2015-Ohio-995, ¶ 10-12; Whitfield at ¶ 7 ("[W]e recognize that [R.C. 

2941.25] incorporates the constitutional protections against double jeopardy. These 

protections generally forbid successive prosecutions and multiple punishments for the 

same offense."); Brown at ¶ 12 ("[T]he two-step test set forth in R.C. 2941.25, Ohio's 

 

1 Although we agree with the assessment of both parties that the trial court sentenced appellant on that 

single offense, this issue is not dispositive to resolving the assignment of error. Appellant does not assert 

that the trial court imposed separate sentences in violation of her double jeopardy and due process rights, 

challenge merger pursuant to R.C. 2941.25, or otherwise call attention to errors in the trial court's 

sentencing or entry. As a result, we proceed to resolve the assignment of error based on appellant's 

argument. 
No. 16AP-95 12 

multiple-count statute, answered both the constitutional and state statutory inquiries 

regarding the General Assembly's intent to permit cumulative punishments for the same 

conduct."). Cases involving a lesser-included offense are subject to R.C. 2941.25 merger 

analysis at sentencing. See, e.g., State v. Day, 2d Dist. No. 2008 CA 70, 2009-Ohio-7046 

(holding, in a case where the defendant was found guilty of burglary and aggravated 

burglary and given concurrent sentences on each, that "[s]ince a defendant cannot be 

convicted of both the greater and lesser offense [pursuant to R.C. 2941.25], the 

convictions are merged, and [the] conviction for burglary will be vacated"); Reid at ¶ 75 

(discussing that, as greater and lesser-included offenses, "under R.C. 2941.25, a defendant 

may generally not be convicted of and sentenced for both gross sexual imposition and 

rape when they arise out of the same conduct"). 

{¶ 34} Furthermore, in Whitfield and restated by Rogers and State v. Williams, __ 

Ohio St.3d __, 2016-Ohio-7658, ¶ 17, the Supreme Court of Ohio specifically held that in 

the context of imposition of multiple punishments for the same offense, "a 'conviction' 

consists of a guilty verdict and the imposition of a sentence or penalty." (Emphasis sic.) 

Whitfield at ¶ 12; Rogers at ¶ 18. See also State v. Crable, 7th Dist. No. 04 BE 17, 2004-

Ohio-6812, ¶ 7 ("[A] defendant cannot be found guilty and punished on both the greater 

offense and the lesser-included offense."); Rutledge v. United States, 517 U.S. 292 (1996) 

(holding concurrent sentences imposed for continuing criminal enterprise and the lesserincluded offense of conspiracy to be cumulative punishment in a single trial in violation of 

double jeopardy). 

{¶ 35} The cases cited by appellant in support of her proposition do not persuade 

us that a different rule should apply here. The majority of the cited cases do not identify 

the guilty verdict itself as the dispositive point for the double jeopardy violation in regard 

to multiple punishments for the same offense in a single proceeding and lack persuasive 

authority considering recent Ohio case law specifically addressing the meaning of 

"conviction" within the context of double jeopardy protections against multiple 

punishments in single proceedings. Therefore, considering all the above, we disagree that 

the jury's finding of guilt on both assault and disorderly conduct alone amounted to 

multiple punishments in violation of appellant's double jeopardy rights. 

{¶ 36} Accordingly, we overrule appellant's first assignment of error. 
No. 16AP-95 13 

B. Third Assignment of Error 

{¶ 37} For ease of argument, we will next consider appellant's third assignment of 

error in which appellant contends that the trial court erred when it permitted prosecution 

witnesses Clardy and Banks to offer their opinion that appellant is depicted in the 

surveillance footage. For the following reasons, we disagree. 

{¶ 38} Evid.R. 701 governs the admissibility of opinion testimony by lay witnesses. 

It states "[i]f the witness is not testifying as an expert, the witness' testimony in the form 

of opinions or inferences is limited to those opinions or inferences which are (1) rationally 

based on the perception of the witness and (2) helpful to a clear understanding of the 

witness' testimony or the determination of a fact in issue." 

{¶ 39} "Evid.R. 701 grants the trial court wide latitude in allowing or controlling 

lay witness opinion testimony." State v. Kehoe, 133 Ohio App.3d 591, 603 (12th 

Dist.1999). Generally, an appellate court reviews the decisions of the trial court 

concerning lay witness testimony for an abuse of discretion. Id. However, appellant did 

not object to Clardy's and Bank's testimony on this basis at trial, and, therefore, plain 

error review applies. " 'An alleged error is plain error only if the error is "obvious," State 

v. Barnes (2002), 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240, and "but for the 

error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 

53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.' " State v. 

Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, ¶ 65, quoting State v. Perez, 124 Ohio St.3d 

122, 2009-Ohio-6179, ¶ 181. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 

¶ 62, quoting Crim.R. 52(B) (" 'Plain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of the court.' "). Plain error 

should be noticed only " 'with the utmost caution, under exceptional circumstances and 

only to prevent a manifest miscarriage of justice.' " Id., quoting Long at 97. 

{¶ 40} Appellant argues that prosecution witnesses Clardy and Banks 

impermissibly "offered lay opinion testimony" that appellant was depicted in the 

surveillance footage due to the lack of evidence that they were familiar with appellant 

prior to the altercation. (Appellant's Brief at 1.) 

{¶ 41} However, regardless of Clardy's and Banks' familiarity with appellant prior 

to the altercation, each demonstrated that their opinion was rationally based on their 
No. 16AP-95 14 

personal knowledge of the identity of appellant in the video. They testified that they were 

present at the altercation, had close contact with the assailant, and recognized appellant's 

face and distinctive clothing from the altercation. Their opinion was helpful to the jury to 

understand their testimony regarding identification of appellant as the person who hit 

Clardy. The circumstances of this case distinguish it from the cases cited by appellant in 

which the witnesses lacked sufficient contact with the defendant to aid the jury with their 

opinion, and we find no error in the trial court's decision to allow Clardy and Banks to 

testify regarding their opinion that appellant was the person who attacked Clardy in the 

video. Furthermore, because Clardy and Banks identified appellant based on their own 

recollection of the incident and identified appellant as Clardy's attacker in open court, 

appellant has not proven that but for the alleged error, the outcome of the trial clearly 

would have been otherwise. 

{¶ 42} Appellant additionally mentions that such testimony has limited probative 

value and was cumulative and confusing, implicating Evid.R. 403. Evid.R. 403 states: 

Exclusion of relevant evidence on grounds of 

prejudice, confusion, or undue delay 

(A) Exclusion mandatory. Although relevant, evidence is 

not admissible if its probative value is substantially 

outweighed by the danger of unfair prejudice, of confusion of 

the issues, or of misleading the jury. 

(B) Exclusion discretionary. Although relevant, evidence 

may be excluded if its probative value is substantially 

outweighed by considerations of undue delay, or needless 

presentation of cumulative evidence. 

(Emphasis sic.) 

{¶ 43} Clardy's and Banks' testimony that appellant was depicted in the video 

assisted the jury in identification of the perpetrator—the solitary issue at trial. We see no 

indication that their testimony confused the issue at trial and, therefore, find no grounds 

for mandatory exclusion under Evid.R. 403(A). We likewise disagree that such testimony 

constituted a needless presentation of cumulative evidence, as the testimony aided the 

jury's understanding of Clardy's and Banks' recognition of appellant's face. As such, we 

do not believe the trial court erred in declining to exclude the testimony under Evid.R. 
No. 16AP-95 15 

403(B). Considering the facts of this case, the trial court did not err or abuse its discretion 

in not excluding Clardy's and Banks' testimony identifying appellant in the video. 

{¶ 44} Accordingly, appellant's third assignment of error is overruled. 

C. Second Assignment of Error 

{¶ 45} In her second assignment of error, appellant contends that the trial court 

erred when it allowed appellee's exhibit 14, the cell phone recording of the surveillance 

footage, to be admitted into evidence, in violation of Evid.R. 901, 1002, 1003, and 403(A). 

For the following reasons, we disagree. 

{¶ 46} The admission of video evidence rests within the sound discretion of the 

trial court. State v. Farrah, 10th Dist. No. 01AP-968 (Apr. 18, 2002). An abuse of 

discretion connotes more than an error of law or judgment and implies that the court's 

attitude is clearly unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983). 

{¶ 47} Appellant primarily argues that the video was not properly authenticated at 

trial in violation of Evid.R. 901. Authentication or identification is a condition precedent 

to admissibility of evidence. Evid.R. 901(A). This requirement is satisfied by evidence 

sufficient to support a finding that the matter in question is what its proponent claims. 

Evid.R. 901(A). The rule provides a non-exhaustive list of illustrations as examples of 

authentication conforming with the rule, including, pursuant to Evid.R. 901(B)(1), 

testimony of a witness with knowledge that a matter is what it is claimed and, pursuant to 

Evid.R. 901(B)(4), distinctive characteristics taken in conjunction with the circumstances. 

The threshold for authentication is low: " 'The proponent need not offer conclusive 

evidence as a foundation [but] must merely offer sufficient evidence to allow the question 

as to authenticity or genuineness to reach the jury.' " State v. Callender, 10th Dist. No. 

15AP-15, 2015-Ohio-4255, ¶ 32, quoting State v. Caldwell, 9th Dist. No. 14720 (Dec. 4, 

1991). Hirsi v. Davis Creek Auto Sales, 10th Dist. No. 15AP-415, 2016-Ohio-7569, ¶ 50. 

{¶ 48} "Photographic evidence, including videotapes, can be admitted under a 

'pictorial testimony' theory or a 'silent witness' theory." State v. Hoffmeyer, 9th Dist. No. 

27065, 2014-Ohio-3578, ¶ 19, quoting Midland Steel Prods. Co. v. U.A.W. Local 486, 61 

Ohio St.3d 121, 129-30 (1991). "Under the pictorial testimony theory, evidence is 

admissible 'when a sponsoring witness can testify that it is a fair and accurate 
No. 16AP-95 16 

representation of the subject matter, based on that witness' personal observation.' " Id., 

quoting Midland Steel Prods. at 129. Thus, the evidence " 'is merely illustrative of a 

witness' testimony.' " State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 150, 

quoting Midland Steel Prods. at 129. " 'In authenticating evidence through this method, 

there is no need to call the witness who took the photographs as long as a witness with 

knowledge can testify that the photograph is a fair and accurate depiction.' " State v. 

Scott, 12th Dist. No. CA2012-06-052, 2013-Ohio-2866, ¶ 36, quoting State v. Freeze, 12th 

Dist. No. CA2011-11-209, 2012-Ohio-5840, ¶ 66. 

{¶ 49} Appellee primarily argues that the incompleteness and poor quality of the 

video affects its authenticity and trustworthiness. However, Clardy testified that she 

personally recorded the surveillance video with her cell phone, had a video made of it and 

presented it personally to the prosecutor's office, and Clardy and Banks each testified that 

they were present at the altercation and that the video fairly and accurately depicts the 

incident. As such, we agree with appellee that Clardy and Banks serve as pictorial 

witnesses and that their testimony was sufficient to authenticate the video pursuant to 

Evid.R. 901(B)(1). Under these circumstances, the trial court did not abuse its discretion 

in allowing the video to be admitted into evidence. 

{¶ 50} Appellant next argues that admission of the recording violated Evid.R. 1002 

and 1003. Evid.R. 1002 provides, "[t]o prove the content of a writing, recording, or 

photograph, the original writing, recording, or photograph is required, except as 

otherwise provided in these rules or by statute enacted by the General Assembly not in 

conflict with a rule of the Supreme Court of Ohio." One such exception is provided in 

Evid.R. 1003, which states "[a] duplicate is admissible to the same extent as an original 

unless (1) a genuine question is raised as to the authenticity of the original or (2) in the 

circumstances it would be unfair to admit the duplicate in lieu of the original." Under 

Evid.R. 1001(4), a duplicate includes "a counterpart produced * * * by means of 

photography, including enlargements and miniatures, or by mechanical or electronic rerecording * * * or by other equivalent techniques which accurately reproduce the 

original." 

{¶ 51} The decision to admit duplicates is within the sound discretion of the trial 

court. State v. Tibbetts, 92 Ohio St.3d 146, 160 (2001). The party seeking to exclude a 
No. 16AP-95 17 

duplicate has the burden of demonstrating that the duplicate should be excluded. Id. A 

trial court does not abuse its discretion in admitting a duplicate where the party seeking to 

exclude the duplicate merely speculates regarding its authenticity. State v. Jones, 8th 

Dist. No. 102318, 2015-Ohio-4694, ¶ 33; State v. Garcia, 3d Dist. No. 5-01-12 (Sept. 10, 

2001). 

{¶ 52} Several appellate courts have found video recordings of surveillance footage 

to be admissible duplicates pursuant to Evid.R. 1003. See, e.g., State v. Taylor, 8th Dist. 

No. 98107, 2012-Ohio-5421, ¶ 39 (cell phone video recording of portions of surveillance 

video and excerpted still-frame photographs admissible duplicates under Evid.R. 1003 

where appellant did not raise genuine questions as to their trustworthiness); Garcia

(video duplicate of store surveillance video admissible under Evid.R. 1003 where 

defendant merely alleged, without strong support, that the duplicate may have omitted 

important parts and the maker of the duplicate testified that the duplicate was a true and 

accurate copy of the original); Jones at ¶ 36 (portions of video tape of a store surveillance 

footage an admissible duplicate where maker of duplicate testified that the footage was 

not altered or tampered with such that it should be deemed unreliable and that the 

duplicate accurately reflected the original). 

{¶ 53} Here, appellant concedes that the video admitted into evidence was a 

duplicate. Appellant argues the test for the admission of duplicates under Evid.R. 1003 

was not met because the authenticity of the video was "hotly disputed" primarily due to its 

"lack of completeness and gaps" and because to do so would be unfair. (Appellant's Brief 

at 38, 39.) 

{¶ 54} Contrary to appellant's position, our review of the record shows that 

appellant did not meet her burden in raising a genuine question as to the authenticity of 

the original or demonstrating that in the circumstances it would be unfair to admit the 

duplicate in lieu of the original. Appellant did not discuss Evid.R. 1003 at all in her 

motion in limine and gives minimal argument specifically to this point at trial beyond 

asking why efforts were not made to preserve the original and questioning the reliability 

generally. Although appellant alleged the video was incomplete, she did so through 

challenges to other rules of evidence without discussing how these points impact 

authenticity. Furthermore, appellee presented testimony supporting the authenticity of 
No. 16AP-95 18 

the original. Clardy testified that she personally viewed the original surveillance footage, 

recorded the entire footage of the incident with her cell phone, had no control over the 

skips that occurred in the video, that the video played for the jury was the same video she 

provided to prosecutors, and that the duplicate of the original was an accurate depiction 

of the altercation. Overall, after reviewing the record and the video, appellant did not 

meet her burden in proving the trial court acted unreasonably, arbitrarily, or 

unconscionably in this case. Therefore, we find that the trial court did not abuse its 

discretion by admitting the duplicate recording of the original surveillance footage into 

evidence. 

{¶ 55} Lastly, appellant argues that the video should have not been admitted 

pursuant to Evid.R. 403(A). As provided earlier, Evid.R. 403(A) covers the mandatory 

exclusion of relevant evidence and states "[a]lthough relevant, evidence is not admissible 

if its probative value is substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury." 

{¶ 56} Appellant argues that the video is "indistinct making it impossible for the 

jury to objectively determine whether Banks' and Clardy's narratives were accurate" and 

"inaudible." (Appellant's Brief at 36.) We disagree that the video is so indistinct that it 

would not aid the jury in objectively determining the accuracy of Clardy's and Banks' 

testimony. This is a case hinging on identification of the perpetrator where the alleged 

victim and eyewitness testified to remembering the face of the assailant from the assault. 

The video, although dark, still provides objective information regarding the proximity of 

Clardy and Banks to the participants, how long of a look Clardy and Banks may have been 

able take of the participants, the distinctive clothing of each participant, and the order of 

events of the incident. As such, the video holds high probative value in assisting the jury 

in assessing the ability of Clardy and Banks to see and accurately remember the face of the 

primary attacker. In such circumstances, we do not find that due to the quality of the 

video and the lack of audibility, the probative value is substantially outweighed by the 

danger of unfair prejudice, of confusion of the issues, or of misleading the jury. State v. 

Simmons, 2d Dist. No. 24009, 2011-Ohio-2068, ¶ 15 (finding that to the extent a 

surveillance video with partially blocked footage corroborates the eyewitness testimony 

and refutes the defendant's own testimony as to what occurred, it has significant 
No. 16AP-95 19 

probative value that is not substantially outweighed by the danger of unfair prejudice 

under Evid.R. 403(A)). Therefore, the trial court did not abuse its discretion in not 

excluding the evidence under Evid.R. 403(A). 

{¶ 57} Accordingly, for all the above stated reasons, appellant's second assignment 

of error is overruled. 

D. Fourth Assignment of Error 

{¶ 58} In her fourth assignment of error, appellant contends that her right to a fair 

trial was undermined when the trial court refused to allow the defense to avail itself of 

Evid.R. 613 and 616 to impeach the testimony of Clardy during cross-examination. We 

disagree. 

{¶ 59} "Cross-examination shall be permitted on all relevant matters and matters 

affecting credibility." Evid.R. 611(B). "The limitation of * * * cross-examination lies 

within the sound discretion of the trial court, viewed in relation to the particular facts of 

the case." State v. Acre, 6 Ohio St.3d 140, 145 (1983). 

{¶ 60} Several evidence rules, as well as common-law principles, cover 

impeachment. See notes to Evid.R. 608. Under the general rule of impeachment, the 

credibility of a witness may be attacked by any party. Evid.R. 607(A). However, "[a] 

questioner must have a reasonable basis for asking any question pertaining to 

impeachment that implies the existence of an impeaching fact." Evid.R. 607(B). 

Pertinent to appellant's assignment of error, under Evid.R. 613, "[i]n examining a witness 

concerning a prior statement made by the witness, whether written or not, the statement 

need not be shown nor its contents disclosed to the witness at that time, but on request 

the same shall be shown or disclosed to opposing counsel." Evid.R. 613(A). Furthermore, 

extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of 

the following apply: 

(1) If the statement is offered solely for the purpose of 

impeaching the witness, the witness is afforded a prior 

opportunity to explain or deny the statement and the opposite 

party is afforded an opportunity to interrogate the witness on 

the statement or the interests of justice otherwise require; 

(2) The subject matter of the statement is one of the 

following: 
No. 16AP-95 20 

(a) A fact that is of consequence to the determination of the 

action other than the credibility of a witness; 

(b) A fact that may be shown by extrinsic evidence under 

Evid.R. 608(A), 609, 616(A), or 616(B); 

(c) A fact that may be shown by extrinsic evidence under the 

common law of impeachment if not in conflict with the Rules 

of Evidence. 

Evid.R. 613(B). As we state in State v. Ferguson, 10th Dist. No. 12AP-1003, 2013-Ohio4798, ¶ 15: 

Evid.R. 613(B), thus, allows introduction of extrinsic evidence 

of a prior statement only after a proper foundation has been 

laid through direct or cross-examination in which: " ' "(1) the 

witness * * * is presented with the former statement; (2) the 

witness is asked whether he made the statement; (3) the 

witness is given an opportunity to admit, deny or explain the 

statement; and (4) the opposing party is given an opportunity 

to interrogate the witness on the inconsistent statement." ' " 

State v. Kulasa, 10th Dist. No. 11AP-826, 2012-Ohio-6021, 

¶ 12, quoting State v. Mack, 73 Ohio St.3d 502, 514-15, 1995 

Ohio 273, 653 N.E.2d 329 (1995), quoting State v. Theuring, 

46 Ohio App.3d 152, 155, 546 N.E.2d 436 (1st Dist.1988). If a 

witness denies making a prior inconsistent statement, a 

proper foundation has been laid, and if, in addition, the prior 

inconsistent statement does not relate to a collateral matter, 

extrinsic evidence is admissible. Kulasa at ¶ 19. If a witness 

admits having made the contradictory statements, however, 

then extrinsic evidence of the prior inconsistent statement is 

not admissible. In re M.E.G., 10th Dist. No. 06AP-1256, 

2007-Ohio-4308; State v. Hill, 2d Dist. No. 20028, 2004-

Ohio-2048, ¶ 40. 

{¶ 61} Furthermore, pursuant to Evid.R. 616(C), "[s]pecific contradiction": 

Facts contradicting a witness's testimony may be shown for 

the purpose of impeaching the witness's testimony. If offered 

for the sole purpose of impeaching a witness's testimony, 

extrinsic evidence of contradiction is inadmissible unless the 

evidence is one of the following: 

(1) Permitted by Evid.R. 608(A), 609, 613, 616(A), 616(B), or 

706; 
No. 16AP-95 21 

(2) Permitted by the common law of impeachment and not in 

conflict with the Rules of Evidence. 

{¶ 62} The issue in this case arose during appellant's cross-examination of Clardy. 

The transcript shows that after appellant asked Clardy about the car that kept riding past 

her mother's house, that she later believed to have followed her to the market, defense 

counsel and Clardy held the following exchange: 

Q. Have you ever had any other problems with other people 

following you? 

A. No. 

Q. Have you ever had any problems with people other than 

Cynthia threatening you? 

A. No. 

Q. Have you ever had problems with anybody other than 

Cynthia attempting to fight you? 

A. No. 

(Tr. Vol. I at 233.) 

{¶ 63} At that point, appellee objected on the basis of relevance. Counsel for 

appellant explained that it intended to question Clardy with two documents, which were 

apparently papers filed in the court of common pleas in 2011 accusing people of following 

and threatening her. Defense counsel stated two purposes for doing so: to present 

evidence that other people may have attacked Clardy and to impeach Clardy's testimony 

as inconsistent with or in contradiction to prior statements. After a wide-ranging 

discussion, the trial court ultimately sustained that objection and disallowed further 

questioning on the subject, pursuant to Evid.R. 404(B), and because appellant had not 

presented alternative methods for the court to allow the questioning. The 2011 

documents were not proffered into evidence. 

{¶ 64} As a preliminary issue, based on this record, we cannot fully review the 

assignment of error to the extent it challenges appellant's inability to use extrinsic 

evidence under Evid.R. 613(B) and 616(C). The testimony here was cut-off at a point 

prior to the defense's hypothetical use of extrinsic evidence, which was not actually 
No. 16AP-95 22 

presented to Clardy. In other words, the error, if any, comes from the court's decision to 

disallow questioning regarding her statements in the prior documents without the use of 

extrinsic evidence. 

{¶ 65} The trial court's exact reason for disallowing any further questioning 

regarding the 2011 documents is unclear. It sustained the objection regarding relevance, 

while also seemingly basing a decision on impermissible other acts evidence under 

Evid.R. 404(B). 

{¶ 66} While we do not see from the record that the evidence was being improperly 

advanced to prove Clardy acted in conformity with her character, in violation of Evid.R. 

404(B), we do find another ground raised by appellee, the lack of inconsistent statements, 

persuasive. From this record, we simply cannot confirm whether Clardy's statements 

were inconsistent or contradicting. Moreover, even if the trial court erred in not 

permitting appellant to impeach Clardy with the 2011 statements, the error was harmless. 

The evidence showed that appellant had a close relationship with Aponte, having shared 

in raising her, and lived near the market and that appellant's niece and Clardy had fought 

the prior day. Clardy's brother's testimony, in which he stated he personally viewed 

appellant during the fight from a close proximity and identified appellant as the person 

who assaulted Clardy, supplemented her testimony to the same. Therefore, considering 

all the above, appellant's argument lacks merit. 

{¶ 67} Accordingly, appellant's fourth assignment of error is overruled. 

IV. CONCLUSION 

{¶ 68} Having overruled appellant's four assignments of error, we affirm the 

judgment of the Franklin County Municipal Court. 

Judgment affirmed.

BROWN, J., concurs. 

HORTON, J., concurring in judgment only. 

_______________