[Cite as State v. Hutchinson, 2013-Ohio-5334.]

IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

STATE OF OHIO, : 

 : Case No. 13CA3 

 Plaintiff-Appellee, : 

 : 

 vs. : 

 : DECISION AND

CHRISTOPHER HUTCHINSON, : JUDGMENT ENTRY

 : 

 Defendant-Appellant. : RELEASED 11/26/2013 

 

 

APPEARANCES:

Chase R. Carter, Chillicothe, Ohio, for Appellant. 

Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee. 

 

Hoover, J. 

 {¶ 1} This is an appeal from a Highland County Common Pleas Court judgment of 

conviction and sentence. Christopher Hutchinson, defendant below and appellant herein, was 

convicted by a jury of five counts of breaking and entering under R.C. 2911.13(A), each felonies 

of the fifth degree; two counts of receiving stolen property under R.C. 2913.51, each 

misdemeanors of the first degree; and one count of theft under R.C. 2913.02(A)(1), a 

misdemeanor of the first degree. 

 {¶ 2} Appellant assigns the following errors for review: 

First Assignment of Error: 
Highland App. No. 13CA3 2 

THERE SHOULD NOT HAVE BEEN AN INSTRUCTION TO THE LESSER 

INCLUDED OFFENSE OF THEFT AS THE DEFENDANT DID NOT 

REQUEST SUCH AN INSTRUCTION AND INSTEAD PRESENTED AN 

"ALL OR NOTHING" DEFENSE. 

Second Assignment of Error: 

THE ADMISSIONS OF PHOTOGRAPHS TAKEN BY AN UNMANNED 

CAMERA WERE NOT PROPERLY AUTHENTICATED AS PER OHIO RULE 

OF EVIDENCE 901 AND THAT THE STATE FAILED TO ADEQUATELY 

PROVE CHAIN OF CUSTODY FOR THESE ITEMS BEFORE THEIR 

ADMISSION INTO EVIDENCE. 

 {¶ 3} For the reasons that follow, we affirm the judgment of the trial court. 

 {¶ 4} The appellant was originally indicted on nine different counts as follows: five 

counts of breaking and entering, one count of theft, and three counts of receiving stolen property. 

The trial court dismissed one of the counts of receiving stolen property without prejudice. The 

remaining eight counts came on for a jury trial in January 2013. 

 {¶ 5} During the trial, the appellant's girlfriend, Rose Duffey, testified. Duffey testified 

that she and the appellant had broken into a barn located at Millerstown Road in Highland 

County and had stolen various items from that barn. On at least five different occasions in 

September 2012, appellant had entered the barn. The various items that were stolen were found 

at the residence of Duffey and appellant, 4400 Carr Road. Duffey further testified that appellant 

had brought things home like a camera and a boat among other items. 
Highland App. No. 13CA3 3 

 {¶ 6} The victims, Anita Foley, Ronald Gossett, and Sharon Gilletly also testified. 

Gilletly and her husband controlled1

 the barn that was broken into by the appellant. Likewise, 

Gilletly and her husband owned the items contained in and around the barn. Gilletly did not 

authorize anybody to enter the barn. In addition, Gilletly described the items that were stolen 

from their property. Gilletly did not authorize anybody to take the items from their property. 

The state attempted to introduce a list of the replacement prices for the stolen items; however, 

the trial court excluded the list on the basis of appellant's hearsay objection. Also, no actual 

values were given by Gilletly during her testimony. 

 {¶ 7} Foley identified the appellant as a man who had turned around in her driveway 

prior to the break-in at her home. Foley also established ownership of a Pentax .35 millimeter 

camera as her husband's camera. Foley confirmed that she did not give anyone permission to 

take the camera. 

 {¶ 8} Gossett testified that he was the owner of a 14 foot aluminum boat and a twowheel trailer for the boat. Gossett identified a photograph of the boat and trailer that was taken 

during the investigation of the crimes. Gossett informed the jury that he did not give Christopher 

Hutchinson or anyone else permission to take his boat. 

 {¶ 9} The investigating officer, Dan Croy, testified for the state. Croy searched the 

property where appellant was living and found property belonging to the Gilletly, Gossett, and 

Foley families. Croy authenticated various photographs depicting the stolen items. 

 {¶ 10} Photographs taken by a trail camera were also presented by the state. Duffey 

testified that the photographs were all true and accurate depictions of the appellant and that the 

 

1 The barn was located on property in the name of Inez McCane Bowman, the mother of Sharon Gilletly. Ms. 

Gilletly testified that the property was in her mother's estate and that she was the executrix of the estate. 
Highland App. No. 13CA3 4 

photographs depicted the property appeared as it appeared during the times of the thefts. The 

dates were listed on the bottom of the photographs. Doug Henson also testified regarding the 

photographs. Henson testified that the camera was in working order. Henson testified that he 

took the SB card out of the deer camera and viewed each picture on a television. Henson further 

testified that each printed picture appeared the same as they appeared on the television. 

 {¶ 11} After the state completed its presentation of the evidence, the state moved to 

admit the photographs and the valuation of the Gilletly's property. The appellant's counsel 

objected to the admission of the valuation of the Gilletly's property on the basis of hearsay. The 

trial court sustained the objection. The trial court next deemed the photographs taken by the deer 

camera admissible. Therefore, the valuation was not admissible; however, the photographs taken 

by the deer camera were admissible. 

 {¶ 12} The appellant's attorney then made a motion for acquittal pursuant to Crim.R. 29. 

The basis for this motion was that values had not been established as to any of the property taken 

from the barn. Appellant claimed that the value was not established for count six, the theft from 

the Gilletly property. On the other hand, the state argued that the jury could find a misdemeanor 

theft rather than a felony theft. In addition, the state contended that common sense could be 

applied by the jury regarding the values of the stolen property and that dismissal was not 

warranted. The trial court denied the appellant's Rule 29 motion for acquittal. The trial court 

sent count six theft to the jury without any additional finding of value. It was reduced to a first 

degree misdemeanor as charged. 

 {¶ 13} Prior to charging the jury, the trial court informed the attorneys for the state and 

the appellant that it would be removing from the verdict form and the instruction on count six the 
Highland App. No. 13CA3 5 

additional finding as to value. The trial court asked the attorneys, "Now, are there any objections 

to the jury instructions once I make those revisions? Anything from the State? * * * Mr. 

Curren?* * * Any request of additional instructions?" 

 {¶ 14} We note that the appellant's attorney answered the trial court, "No, Your Honor." 

At no time were any objections made regarding the jury instructions. Even after taking a brief 

recess, the trial court came back on the record and stated, "The Court has made revisions to the 

jury instructions and Form 6 has been changed to delete the additional finding and just reflect a 

guilty or not guilty verdict. All right, is there anything further from counsel before we bring the 

jury back in?" Both the state and appellant's attorney answered, "No, Your Honor." 

 {¶ 15} In his first assignment of error, appellant asserts that a defendant in a criminal 

trial, as a matter of trial strategy, has a right to present an “all or nothing” defense and refuse any 

lesser included offense instructions. The appellant claims that a conflict or ambiguity exists in 

Ohio regarding whether a trial court has a mandatory duty to instruct on lesser included offenses 

or if a defendant has the right to refuse such instructions. The appellant relies upon State v. 

Clayton, 62 Ohio St.2d 45, 47, 402 N.E.2d 1189 (1980), for his argument that a defendant 

maintains the right to refuse such instructions. 

 {¶ 16} This Court rejected the argument that defendants have the right to prohibit the 

court to instruct the jury on lesser included offenses. This court stated in State v. Seymour, 4th 

Dist. Pickaway No. 90CA38, 1993 WL 472875, *17 (Nov. 9, 1993): 

No statute or rule prohibits a trial court from sua sponte issuing a lesser included 

instruction. Indeed, it has been held that a trial court must fully and completely 
Highland App. No. 13CA3 6 

give the jury all relevant and necessary instructions. State v. Comen (1990), 50 

Ohio St.3d 206 [553 N.E.2d 640], paragraph two of the syllabus; R.C. 2945.11. 

* * * 

[W]e do not believe the Clayton footnote prevents the trial court from charging 

the jury on the lesser included offense of voluntary manslaughter. Although the 

Clayton footnote mentioned that defendants have a right to waive jury instructions 

on lesser included offenses, the footnote did not say defendants have a right to 

prevent such instructions. We note Clayton did not involve a situation where the 

defendant wished to prevent a jury instruction on a lesser included offense. The 

footnote appeared in a discussion of whether the court committed plain error 

when it failed to instruct the jury on a lesser included offense absent a request 

from the defendant for such an instruction. 

 {¶ 17} The case State v. Kuhn, 4th Dist. Meigs No. 94CA24, 1996 WL 140197 (Mar. 25, 

1996), is similar to the case before us now. The appellant in Kuhn had been charged with 

felonious assault. 

[A]ppellant's trial strategy was to seek "a total acquittal" on the criminal act for 

which he was charged. To that end, appellant requested that the jury be 

instructed only on the greater offense of felonious assault and the issue self 

defense. He also expressly noted his objection to the use of an aggravated assault 

instruction. 

Kuhn at *3. Appellant argued that he had the authority to waive a jury instruction on a lesser 

included offense and require that it not be given. Id. This Court held that although the appellant 
Highland App. No. 13CA3 7 

had the authority to waive the reading of an aggravated assault instruction to the jury, the 

appellant did not have the authority to prohibit or prevent such a charge from being given. Id. at 

*4. Accordingly, we overruled the appellant’s assignment of error. 

 {¶ 18} In contrast to the case sub judice, in the Kuhn case, the appellant's attorney 

specifically requested that the jury only be instructed on the greater offense; and he expressly 

objected to the lesser included offense instruction. In this case, appellant Hutchinson did not 

make any specific objections to the jury instructions as given by the trial court. Although we 

recognize that the appellant's attorney made the motion for acquittal based upon lack of evidence 

on the value of the stolen items, this does not amount to a specific objection to the jury 

instructions. Even with specific objections to the lesser included jury instructions, this Court 

refused to find error in Kuhn. Likewise, we will not find error in this case based on the trial 

court giving the lesser included offense instruction to the jury. 

 {¶ 19} Accordingly, based upon the foregoing reasons, we overrule appellant's first 

assignment of error. 

 {¶ 20} In appellant's second assignment of error, he asserts that the trial court erred in 

admitting photographic evidence generated by an unattended surveillance camera without 

establishing chain of custody or authentication. The appellant contends that the only person to 

testify to the authentication of the photographs was Doug Henson. The appellant claims that 

Henson was not present when the pictures were taken by the camera. He further claims that the 

photographs may have been substituted, altered or tampered with since the pictures were 

selectively printed. At trial, appellant argued that a proper foundation had not been laid to show 
Highland App. No. 13CA3 8 

that the camera was in proper working order; and appellant claimed that a chain of custody 

problem existed. 

 {¶ 21} We review the admissibility of photographs under the abuse of discretion 

standard of review. State v. Valentine, 4th Dist. Washington No. 94CA06, 1995 WL 249879, *3 

(Apr. 26, 1995). 

Admission or exclusion of photographs is left to the sound discretion of the trial 

court. Id.; State v. Slagle (1992), 65 Ohio St.3d 597, 601. An abuse of discretion 

involves more than an error of judgment; it connotes an attitude on the part of the 

court that is unreasonable, unconscionable, or arbitrary. State v. Lessin (1993), 67 

Ohio St.3d 487, 494; Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd.

(1992), 63 Ohio St.3d 498, 506; Wilmington Steel Products, Inc. v. Cleve. Elec. 

Illum. Co. (1991), 60 Ohio St.3d 120, 122. When applying the abuse of discretion 

standard, a reviewing court is not free to merely substitute its judgment for that of 

the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v. 

Matthews (1990), 53 Ohio St.3d 161, 169. 

Id. 

 {¶ 22} "A foundation for admissibility of photographs is laid by evidence 

establishing that the photographs are an accurate and faithful representation of the scene 

depicted." State v. King, 4th Dist. Ross No. 1553, 1990 WL 9943, *3 (Feb. 6, 1990) 

citing State v. Woodards, 6 Ohio St.2d 14, 215 N.E.2d 568 (1966). In this instance, the 

state presented photographs (exhibits 6 through 19, 23, and 24) that were taken by the 

unmanned deer camera. 
Highland App. No. 13CA3 9 

 {¶ 23} After hearing arguments from the state and the appellant regarding the 

photographs, the trial court stated the following: 

THE COURT: Okay. Well, that objection is overruled. The test of 

admissibility is whether the photograph was represented, a true and 

accurate photograph of the scene as it was depicted that day. Ms. Duffey 

did testify and do that. Had she not been available to do that, perhaps it 

would have been a different issue. 

As far as the stuff about who developed them and so forth, that really 

doesn't matter. The camera was apparently in working order, according to 

Mr. Henson. There is no indication it was not. So, now that objection as 

to the photographs taken by the trail camera will be overruled. 

 {¶ 24} With respect to authentication of the photographs, Duffey had testified 

regarding exhibits 6 through 19, 23 and 24. She identified the photograph of the red 

truck driven by appellant as a true and accurate depiction of the truck. She also identified 

the photographs of herself and appellant as true and accurate depictions of the way they 

appeared on the Millerstown Road property. Duffey testified that a photograph showing 

appellant and herself taking a trailer off the Millerstown Road property was also a true 

and accurate depiction of the way they appeared. Duffey even identified a photograph 

with appellant's tattoo on the back of his leg at the property as true and accurate depiction 

of the way appellant appeared. 

 {¶ 25} As to any chain of custody concerns, Gilletly testified that she and her 

husband had decided to put up a trail camera because items were coming up missing. 
Highland App. No. 13CA3 10 

Doug Henson, a "hunting buddy" of Mr. Gilletly, actually put up the camera. Ms. 

Gilletly explained the contents of the photographs taken by the trail camera to the jury. 

Henson testified regarding his actions with respect to the placement of the camera. 

Henson testified to the type camera and how it works. He explained that the date and 

time was checked with his cell phone when he first set up the camera in the hollowed out 

tree on the Millerstown Road property. Henson further testified about what he did with 

the camera after it was taken down from the tree. Henson opened the camera, removed 

the SB card, took it inside, and plugged it into his television to view the photographs. 

Henson verified that the photographs that the state had introduced were true and accurate 

depictions of the images he viewed on his television from the SB card. 

 {¶ 26} In light of the testimony of Duffey, Gilletly, and Henson, we cannot find 

that the trial court abused its discretion when admitting the photographs. Therefore, we 

overrule appellant's second assignment of error. 

JUDGMENT AFFIRMED. 

 
Highland App. No. 13CA3 11 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein 

taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Highland County 

Common Pleas Court, to carry this judgment into execution. 

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously posted. The 

purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of the proceedings in that court. If a stay is continued 

by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the 

failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the fortyfive day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court 

of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration 

of sixty days, the stay will terminate as of the date of such dismissal. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Harsha, J. & Abele, J.: Concur in Judgment and Opinion. 

 For the Court 

 By: 

 Marie Hoover, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.