[Cite as State v. Villegas , 2019-Ohio-823.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v.

NICOLE VILLEGAS Appellant C.A. No. 17CA011172

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR090804

DECISION AND JOURNAL ENTRY Dated: March 11, 2019

SCHAFER, Presiding Judge. {¶1} Defendant-Appellant, Nicole Villegas, appeals her c onvictions from the Lorain County Court of Common Pleas. For the reas ons that follow, this Court affirms.

I. {¶2} In the early morning of November 24, 2014, the Elyria Police Department responded to a call reporting a shooting incident. Upon arrival, officers discovered that the victim, L.C., had died as a result of a gunshot wound. Ms. Villegas was arrested and charged in connection with L.C.’s death. On December 30, 2014, the Lorain County Grand Jury returned a four-count indictment, charging Ms. Villegas w ith the following: one count of murder in violation of R.C. 2903.02(A), one count of murder in violation of R.C. 2903.02(B), one count of felonious assault in violation of R.C. 2903.11(A )(1), and one count of felonious assault in violation of R.C. 2903.11(A)(2). A firearm sp ecification was attached to each count in the indictment. Ms. Villegas entered a plea of not guilty to all charges.2

{¶3} After a lengthy period of pretrial proceedings, a jury trial commenced on April 25, 2017. The jury returned verdicts finding Ms. Villegas guilty on count two, murder with a firearm specification; guilty on count three, felo nious assault with a firearm specification; and guilty on count four, felonious a ssault with a firearm specification. The jury found Ms. Villegas not guilty of murder as charged in count one, but found her guilty of the lesser included offense of reckless homicide. The trial court issued a judgment entry of conviction sentencing Ms. Villegas on June 27, 2017. {¶4} Ms. Villegas timely appeals her convicti on and presents three assignments of error for our review. For ease of analysis, we consolidate her second and third assignments of

error.

II. Assignment of Error I Ms. Villegas was prejudiced and denied due process when the trial court failed to excuse biased jurors for cause after they pledged to give more credibility to police officer testimony. {¶5} On appeal, Ms. Villegas contests the trial court’s denial of her challenge to remove “eight biased jurors” for cause pursuant to R.C. 2313.17(B)(9). Additionally, Ms. Villegas argues that the trial court improperly forced her to use her peremptory challenges to remove jurors who should have been removed for cause. Ms. Villegas contends that she was prejudiced in that she was left “with fewer peremptory challenges than provided by law.” {¶6} A trial court has broad discretion in determining a prospective juror’s ability to be impartial. State v. Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 94. Therefore, “[a] trial court’s ruling on a challenge for cause will not be disturbed on appeal absent an abuse of

discretion.” Id. , citing State v. Cornwell , 86 Ohio St.3d 560, 563 (1999).3

{¶7} Pursuant to R.C. 2313.17(B)(9), it is good cause for challenge to a potential juror where the “person discloses by the person’s answers that the person cannot be a fair and impartial juror or will not follow the law as given to the person by the court.” As this Court has previously stated,

[i]n cases where a juror gives conflicting answers regarding a possible bias, the trial court must determine which answer truly reflects the prospective juror’s state of mind. As long as a trial court is satis fied, following additional questioning of the prospective juror, that the juror can be fair and impartial and follow the law as instructed, the court need not re move that juror for cause. (Internal citations and quotations omitted.) Giusti v. Felten , 9th Dist. Summit No. 26611, 2014- Ohio-3115, ¶ 7. {¶8} During voir dire, Ms. Villegas queried the venire as to whether the testimony of a law enforcement officer should carry more weight th an the testimony of any other witness. That question prompted a dialogue between tria l counsel for Ms. Villegas and a number of venirepersons, several of whom expressed an inclination to find the testimony of a law enforcement officer to be more credible than testimony of other types of witnesses. {¶9} Ms. Villegas’s trial counsel then posed a similar question to the venire to test for bias or prejudice: So my last question, because it’s a little c oncerning that some of you may give more credibility to an officer of the law as opposed to any other witness, does anybody feel that that will create a bias or prejudice in this case? Some potential jurors spoke up to state that they believed they may have a bias in favor of the testimony of a law enforcement officer. Some jurors engaged in a discussion relative to the topic or expressed confusion as to the issue. The record reflects that most potential jurors gave no indication of a bias or prejudice.4

{¶10} Ms. Villegas moved the trial court to strike potential juror No. 1 for cause, because “she said she would give [law enforc ement] testimony more weight, more credibility and even if instructed she would still give an officer’s testimony more weight.” She also moved to strike potential jurors Nos. 2, 3, 4, 5, 7, 8, 9, 10 and 15 for cause because “[t]hey all said they would give more credence to law enforcement than to any other witness, or credibility, even if instructed not to.” Ms. Villegas’s trial counsel further stated, “And I believe [potential juror No. 15], talked about biases that he might not be able to overcome.” She also indicated that potential juror No. 5 was “very concerning” because he “[ s]aid he couldn’t be impartial.” Counsel also expressed that there were unspecified “others” in this category. {¶11} The trial judge decided that the best cour se of action was for the court to examine the entire venire in order to clarify the question and ensure that the record contained a specific answer from each juror as to his or her position on the issue of law enforcement officer testimony. After an initial inquiry, the trial judge briefly explained jury instructions regarding the credibility of witnesses and weight of the evidence, and further explained that these rules apply equally to testimony from a law enforcemen t officer. He then asked each potential juror to indicate how, if instructed to consider the testimony of any law enforcement officer the same as any other witness, the instruction would impact his or her consideration of an officer’s testimony. Of the twenty three potential jurors questioned, only Nos. 5 and 15 expressed an unwillingness or inability to follow the instructions and give proper weight to testimony of a law enforcement officer. Consequently, the trial court stated that it would grant the release of potential jurors Nos. 5 and 15. Thereafter, Ms. Villegas confir med her specific and continuing objection to potential jurors Nos. 1, 2, 8, 9, and 10.5

{¶12} On appeal, Ms. Villegas challenges the impartiality of potential jurors Nos. 2, 8, 9, 10, 13, 16, 17, and 19. She asserts that these eight jurors all disclosed through questioning during voir dire an inability to be fair and impartial. According to Ms. Villegas, these eight jurors “expressed views that would prevent or s ubstantially impair [their] performance [as jurors] and showed a lack of fairness and [partiality] toward law enforcement officers[.]” Of these potential jurors, the State used peremptory challe nges to strike potential jurors Nos. 16 and 17. Ms. Villegas used four of her peremptory challe nges to strike potential jurors Nos. 2, 8, 10, and 13; however, Ms. Villegas had not maintained an objection to potential juror No. 13. Ms. Villegas did not use a peremptory challenge as to either jurors No. 9 or 19, and both were empaneled. {¶13} Regarding potential jurors No. 9 and 19, Ms. Villegas argues on appeal that the trial court’s questioning during voir dire was essentially an unsuccessful attempt to rehabilitate biased jurors. Initially, potential juror No. 19 indicated that she thought she “would consider a police officer higher,” but then responded, “Yes. No problem.” when the trial court questioned her ability to follow the court’s instructions on credibility of testimony and weight of evidence. {¶14} Ms. Villegas claims that “there was no information presented that shows [potential juror No. 19] would have been entirel y unbiased.” However, Ms. Villegas did not use a peremptory challenge to strike potential juror No. 19, and this Court’s review of the record shows that Ms. Villegas never challenged potential juror No. 19 for cause but, instead, raises the argument that she should have been removed for cause for the first time on appeal. Because she failed to challenge this juror for cause and failed to use a peremptory challenge, Ms. Villegas waived any objection to that juror’s service and our review is limited to plain error. See State v.

Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 72, State v. Mammone , 139 Ohio St.3d 467, 2014-6

Ohio-1942, ¶ 79. In her merit brief, Ms. Villegas fa iled to argue or demonstrate the existence of plain error regarding alleged bias that would ha ve required the removal of potential juror No. 19, and this Court will not attempt to construct such an argument on her behalf. State v. Cross , 9th Dist. Summit No. 25487, 2011-Ohio-3250, ¶ 41, citing State v. Hairston , 9th Dist. Lorain No. 05CA008768, 2006–Ohio–4925, ¶ 11 (“While a defendant w ho forfeits such an argument still may argue plain error on appeal, this [C]ourt w ill not sua sponte undertake a plain-error analysis if a defendant fails to do so.”). {¶15} Ms. Villegas also argues that there was no information presented to show that potential juror No. 9 was entirely unbiased. Following the trial court’s rele ase of potential jurors No. 5 and 15, Ms. Villegas continue d to object to potential jurors No. 1, 2, 8, 9, and 10. Of these five, she used peremptory challenges to strike Nos. 1, 2, 8, and 10. Thus, while Ms. Villegas did eventually exhaust all of her peremptory challenges, she did not use a peremptory challenge to strike potential juror No. 9. “As a matter of st ate law, we have ‘recognized that where the defense exhausts its peremptory challenges before the full jury is seated, the erroneous denial of a challenge for cause in a criminal case may be prejudicial.’” State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 87, quoting State v. Cornwell , 86 Ohio St.3d 560, 564, (1999). However,

where a defendant is not forced to exhaust his peremptory challenges based on the trial court overruling a challenge for cause, he cannot th en complain of prejudicial error. Id . quoting State

v. Eaton , 19 Ohio St.2d 145 (1969), paragraph one of the syllabus. “Thus, ‘[i]f the trial court erroneously overrules a challenge for cause, the error is prejudicial only if the accused eliminates the challenged venireman with a peremptory challenge and exhausts his peremptory challenges before the full jury is seated.’” (Emphasis sic.) Id . quoting State v. Tyler , 50 Ohio St.3d 24, 30- 31, (1990).7

{¶16} Here, Ms. Villegas did not exercise one of her five peremptory challenges in response to the trial court overruling her challeng e to remove potential juror No. 9 for cause. Although Ms. Villegas ultima tely did use all of her peremptory challenges before the jury was empaneled, she has not asserted that she was unable to use a peremptory challenge to strike potential juror No. 9, and has not presented any argu ment or explanation as to why she failed to use a peremptory challenge to do so. Ms. Villegas has not demonstrated that she was forced to use or exhaust her peremptory challenges to ex cuse potential juror No. 9 and, therefore, she has not shown that she was prejudiced when the tr ial court overruled her challenge for cause. {¶17} Moreover, Ms. Villegas has not identified any evidence in the record to establish that potential juror No. 9 was unable to be a fair and impartial juror or that he would not follow the law as given by the court. See R.C. 2313.17(B)(9). Nor has she shown any prejudice, partiality, or unsuitability in potential juror No. 9 to demonstrate an abuse of discretion in the trial court’s decision to overrule her challenge for cause. See R.C. 2313.17(D). During voir dire, potential juror No. 9 responded to the trial judge’ s question stating that he agreed with the statement made by another potential juror, and “would give a lot of credibility” to an officer’s testimony. Subsequently, in response to the trial c ourt’s final query, he stated that he would be able to keep an open mind based on the court’s instructions for considering the credibility of witnesses and weight of evidence. “‘As long as a trial court is satisfied, following additional questioning of the prospective juror, that the juror can be fair and impartial and follow the law as instructed, the court need not remove that juror for cause.’” State v. Swift , 9th Dist. Summit No. 27084, 2014-Ohio-4041, ¶ 4, quoting State v. Moss , 9th Dist. Summit No. 24511, 2009-Ohio3866, ¶ 11. In light of the trial court’s broad discretion to determin e impartiality, we pay deference to the trial judge who sees and hears the juror when a potential juror is challenged for8

bias. State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 11, quoting State v. White , 82 Ohio St.3d 16, 20 (1998). Ms. Ville gas has failed to demonstrate th at the trial court abused its discretion in denying the initial challenge for cause against potential juror No. 9. {¶18} Ms. Villegas’s first assignment of error is overruled. Assignment of Error II The trial court erred in admitting prior text messages to and from different phones as they were not properly authenticated and their admission is unduly prejudicial and not properly admitted as a business record exception to the hearsay rule. Assignment of Error III

The trial court’s admission of the text message evid ence pursuant to [Evid.R.] 801(D)(2)(a) deprived Ms. V illegas her right to a fair trial. {¶19} At a pretrial hearing, the parties presented argument regarding the State’s motion in limine and Ms. Villegas’s response thereto. Th e State requested a preliminary ruling as to the admissibility of text messages extracted from va rious cell phones. The State asserted that the text messages from Ms. Villegas were not hear say and admissible under Evid.R. 801(D)(2), and the text messages from L.C. were admissible as nonhearsay because they were not being offered

for the truth of the matter asserted. In the mo tion, the State indicated th at it would authenticate the text messages through the testimony of the detective who extracted the messages from the cell phones obtained as evidence. Additionally, th e State asserted that the text messages would also be admissible pursuant to Evid.R. 404(B) and R.C. 2945.59 to show motive, intent, and the

absence of mistake or accident on Ms. Villegas’s part. In response, Ms. Villegas argued that the text messages the State sought to introduce we re unfairly prejudicial and not significantly probative. In the alternative to excluding the text messages on this basis, Ms. Villegas urged the trial court to admit all the text messages between herself and L.C. rather than just those text9

messages the State wanted to introduce. Upon the conclusion of the hearing, the trial court deferred ruling on the admissibility of the te xt messages and took the matter under advisement. {¶20} After the jury was empaneled, and just prior to the commencement of trial, the trial court ruled on the motion in limine and stated that, while the court can appreciate Ms. Villegas’s position that some of the statements contained in the text messages are prejudicial, “in the totality of it, it’s prejudicial to both the [vic tim, L.C.,] and Ms. Villegas, No. 1, because of their language, and, No. 2, because they contain a lot of information that [L.C.] was involved in the illegal drug trade.” The trial court discussed the parties’ theories of the case and possible

lesser included offens es, and concluded that the probative value of those text messages, whether they are evidence of the provocation of the victim or the passion, or not, of [Ms. Villegas], I find that their probative value outweighs th eir prejudicial impact, and find that they will allow the State to utilize that as an exhibit during its presentation of its case-in-chief. Further, the trial court ruled that the text messages between Ms. Villegas and L.C., starting approximately a month and a half before the shooting, were within a sufficiently close time frame and probative as to the c ourse of conduct between Ms. Ville gas and the victim during that stretch of time. Ms. Villegas did not object to the trial court’s ruling on the admissibility of the

text messages. {¶21} At trial, Officer Daniel Sumpter, a detective with the Elyria Police Department,

testified that a total of seven ce ll phones were collected through the course of the investigation: one was obtained from Ms. Villegas at the scene of the incident, and the others were obtained

either from the scene or retrieved as a result of the execution of search warrants. Officer Sumpter obtained search warrants that allowed him to retrieve inform ation from these phones.

He testified that the informa tion obtained from the phones was important to the investigation because it can give detectives insight and information as to the events leading up to the incident.10

Officer Sumpter also testified a bout his qualifications and certifi cation for digital forensics in law enforcement. He testified as to his experience in, and the process for, forensic extraction of data from phones and for analyzing or interpre ting that data. Offi cer Sumpter testified extensively regarding the contents of the repor t of the text messages he extracted from phones used by Ms. Villegas and the victim, respectively. {¶22} On appeal, Ms. Villegas argues that it was improper for the trial court to admit into evidence over 4,000 text messages exchanged between Ms. Villegas and the victim. In her brief, Ms. Villegas asserts that “the [text message s] were not properly authenticated pursuant to Evid.R. 901(B)(6)[,]” and that they “qualify as business records under Evid.R. 803(6).” Ms. Villegas acknowledges that she did not object to the admission of the text messages on the grounds of Evid.R. 901(B)(6) or Evid.R. 803(6) at tr ial, but argues that the admission of the text messages is plain error. Also in her second assignm ent of error, Ms. Villegas argues that the text messages should have been exclude d under Evid.R. 403(B). In her third assignment of error she reiterates this Evid.R. 403(B) ar gument and contends, in the ev ent this Court should determine “that the text messages are not hearsay pursuan t to Evid.R. 801(D)(2)(a), then an analysis pursuant to Evid.R. 403(B) is appropriate.”

A. Evid.R. 901(B)(6) or Evid.R. 803(6) {¶23} The parties agree that a plain error standard applies to this Court’s review of Ms. Villegas’s challenges to the admission of error under Evid.R. 901(B)(6) or Evid.R. 803(6). Plain error may only be invoked where the following three elements exist: First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an error must be an “obvious” defect in the trial proceedings. * * * Third, the error must have affected “substantial rights” * * * [and] affected the outcome of the trial.11

State v. Consilio , 9th Dist. Summit No. 28409, 2017-Ohio-7913, ¶ 7, quoting State v. Barnes , 94 Ohio St.3d 21, 27 (2002). There is a discretionary aspect of Crim.R. 52(B), and reviewing courts should take notice of plain error “with the u tmost caution, under excepti onal circumstances and only to prevent a manifest miscarriage of justice.” State v. Long , 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. {¶24} Ms. Villegas discusses in her brief that hearsay is generally inadmissible unless it falls within an exception, such as the busine ss records exception under Evid.R. 803(6). Evid.R. 803 states, in pertinent part, that “[t]he follow ing are not excluded by the hearsay rule, even though the declarant is available as a witness:” Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, even ts, or conditions, made at or near the time by, or from information transmitted by , a person with knowledge, if kept in the course of a regularly conducted busin ess activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(1 0), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this pa ragraph includes business, institution, association, profession, o ccupation, and calling of every kind, whether or not conducted for profit. Evid.R. 803(6). {¶25} Ms. Villegas argues that the text messages were not properly authenticated as business records through Evid.R. 803(6), contending that: no evidence was presented to show that the text messages were regularly recorded in a regularly conducted activity; no representative from the phone company was introduced with knowledge of the messages; whether they were recorded at or near the time of the transaction; and a foundation was not laid by the []custodian of the record or by some []other qualified witness. Ms. Villegas contends that the testimony of O fficer Sumpter to authenticate the text messages

was insufficient because the Stat e “did not present any testimony from the cell phone company’s12

custodian of records.” Thus, it appears that Ms. Villegas’s argument is based on a presumption that the text messages are hearsay and then further on the premise that the business record exception of Evid.R. 803(6) was the only possi ble exception under which the text messages

could have been admitted. {¶26} Before this Court can consider whether the text messages were properly authenticated and admitted under the hearsay excep tion for business records, Ms. Villegas must first demonstrate that the exception is applicable, in that the text messages are (1) hearsay, and (2) business records. Ms. Villega s has failed to establish either and, accordingly, has failed to support her contention that the text messages we re not properly authenticated or admitted as business records pursuant to Evid.R. 803(6). B ecause Ms. Villegas has not demonstrated the applicability of Evid.R. 803(6), her argument th at the trial court committed plain error in admitting the text messages on such grounds lacks merit. {¶27} In her brief, Ms. Villegas references Evid.R. 901(B)(6), which provides an “example[] of authentication or identification conforming with the requirements of [Evid.R. 901]” in the context of telephone conversations as follows: Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone comp any to a particular person or business, if (a) in the case of a person, circumst ances, including self-identification, show the person answering to be the one called, or (b) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. However, Ms. Villegas does not provide support for this contention, in that she fails to demonstrate the relevance of Evid.R. 901(B)(6) to the admission of an exhibit containing a record of her text messages with the victim. {¶28} Within her brief, Ms. Villegas states, “Officer Sumpter’s testimony did not provide an adequate foundation for the records pursuant to both Evid.R. 901(A) and 803(6).”13

(Emphasis added.) Evid.R. 901(A) provides that “[t]he requirement of authentication or identification as a condition precedent to admissib ility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” To the extent that Ms. Villegas might have intended to base her argume nt on Evid.R. 901(A), we conclude that she has failed to assert any argument i ndependent of her Evid.R. 803(6) argument to demonstrate that Officer Sumpter failed to properly authenticate the text messages or that the trial court erred by admitting them. {¶29} Therefore, we conclude that Ms. Villegas has not demonstrated any of the three elements required to show plain error based on her Evid.R. 901 or Evid.R. 803(6) arguments.

B. Evid.R. 403(A) {¶30} Ms. Villegas also asserts a limited argument that the text messages should have been excluded based on Evid.R. 403(A). She states that the text message records were “unduly prejudicial and inflammatory” and “not relevant to any material fact[.]” Ms. Villegas acknowledges in her brief that she did not properl y preserve an objection to the admission of the text messages on this basis and, ther efore, failed to preserve the issue. Accordingly, she asserts that a plain error review applies to this issue as well. {¶31} Pursuant to Evid.R. 403(A), “[a]lthough rele vant, evidence is not admissible if its probative value is substantially outweighed by the da nger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Ms. Villegas makes reference to issues she raised in the trial court regarding the risk of prejudice and lack of relevance of the text messages. Other than asserting that the admission of the text message records was unduly prejudicial and inflammatory because of the harsh and vulgar language, she fails to develop any meaningful argument to14

support this statement or to demonstrate that the tr ial court erred by declining to exclude the text messages on these grounds. {¶32} Additionally, in her brief Ms. Villegas states rather generically that the admission of the text message “records as a whole” were inflammatory and prejudicial. However, Ms. Villegas contradicted her own argument when she stated her request to the trial court that, if any text messages are allowed in, that they all come in. In fact, the trial court reasoned that “both sides seem to be comfortable that if they come in, they all come in.” Therefore, to the extent that there may have been any error in the trial cour t’s action, Ms. Villegas i nvited the error and may not take advantage of an error whic h she herself invited or induced. State v. Edwards , 9th Dist. No. 28164, 2017-Ohio-7231, ¶ 37, quoting State v. Campbell , 90 Ohio St.3d 320, 324 (2000). {¶33} Lastly, Ms. Villegas contends that “the last text message relevant to the cause was sent three days prior to the shooting of [the vi ctim] and was too far removed from the event to be admitted.” Ms. Villegas has not identified the particular message she refers to, and has not presented any argument to explain how the timing of “the last text message” diminishes the probative value of the evidence such that it would be inadmissible under Evid.R. 403(A). {¶34} We conclude that Ms. Villegas has not demonstrated any of the three elements required to show plain error in the trial court’s decision overruling Ms. Villegas’s motion in limine on the basis of Evid.R. 403(B). {¶35} Ms. Villegas’s second and third assi gnments of error are overruled.

III. {¶36} Ms. Villegas’s first, second, and third a ssignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.15

Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

TEODOSIO, J. CALLAHAN, J. CONCUR.

APPEARANCES: DENISE G. WILMS, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.