[Cite as State v. Gordon , 2018-Ohio-2292.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106023

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. NEEKO GORDON

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609261-A

BEFORE: Blackmon, J., E.A. Gallagher, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: June 14, 2018

-i-ATTORNEY FOR APPELLANT Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Maxwell Martin Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113PATRICIA ANN BLACKMON, J.: {¶1} Neeko Gordon (“Gordon”) appeals from hi s convictions for multiple offenses

associated with the murder of Ricardo Nieves (“Nieves”). As Gordon states in his appellate brief, “There is no dispute th at Ricardo Nieves died on August 25, 201[6] from a gunshot wound

to the head. The issue in this case is who did it.” Gordon assigns the following errors for our

review: I. Appellant’s convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal. II. The convictions were against the manifest weight of the evidence. III. The trial court erred by ad mitting a jail call that was not properly authenticated and violated Evid.R. 401, 402 and 403 and de prived appellant of his constitutional rights to due proce ss and a fair trial. IV. The trial court erred by admittin g a Facebook photograph that was not properly authenticated a nd violated Evid.R. 401, 402 and 403 and deprived appellant of his constitutional rights to due process and a fair trial. V. The trial court erred by giving a f light instruction over appellant’s objection and that was not supported by the record.

VI. The trial court erred a nd violated appellant’s due pr ocess right to a fair trial by allowing Joe Butler to testify, ove r the defense’s objec tion, that appellant carries a revolver and had been seen with it days before the shooting. {¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.

I. Introduction {¶3} On August 25, 2016, Robert Holsey (“Ho lsey”) agreed to purchase marijuana from Gordon. Holsey and Gordon knew each othe r from playing basketball at Trent Park. Nieves drove Holsey to the marijuana-purchase- meeting place on W. 38th Street in Cleveland.As Nieves and Holsey drove toward the meetin g place, they saw Gordon, became suspicious, and started to drive away. Through the side mirror of the car, Holsey saw Gordon raise his arm with an object in his hand, then Holsey heard shots fi red. Gordon ran away. Holsey realized Nieves had been shot. Holsey, who was in the passenger seat of the vehicle, ducked to avoid further gunfire and pressed the ga s pedal with his hand. Holsey stoppe d the car at the next intersection, put Nieves in the back seat, and drove toward MetroHealth. Holsey got into an accident near the hospital, and called 911. {¶4} When the police arrived, Holsey told them that Nieves was shot by a man named “Neeko” who stays at a house on W. 41st Street . The police went to this house and found Gordon there. Holsey identified Gordon as the pe rson who shot Nieves. Nieves later died from a gunshot wound to the neck and head. {¶5} On September 2, 2016, a grand jury indi cted Gordon for aggravated murder, murder, attempted murder, three c ounts of felonious assault, discha rging a firearm in a prohibited area, tampering with evidence, and having a weapon while under disability. On June 20, 2017, a jury acquitted Gordon of the aggravated murder and attempted murder ch arges and convicted him

of all other counts. On June 29, 2017, the court sentenced Gordon to an aggregate prison term of 28 years to life. It is from thes e convictions that Gordon appeals. II. Trial Testimony Eyewitness Robert Holsey {¶6} Holsey testified that he and Nieves ran into Gordon at a convenient store on Fulton Road on August 25, 2016. Holsey knew Go rdon because they had played basketball together in the neighborhood. Video surveilla nce footage from the convenient store was introduced into evidence. It showed Holsey, Ni eves, and Gordon in the store and in the parkinglot on the day in question. Gordon was wearing an orange shirt in the video, and he had a

dark-colored shirt or towel slung over his shoulder. {¶7} Holsey arranged to buy marijuana fro m Gordon. Gordon said the marijuana was “stashed,” and they were to meet nearby on W. 38th Street. Nieves drove his white Toyota Corolla, with Holsey in the passenger seat, to the meeting place. As they were driving north on W. 38th Street toward Robert Avenue, they saw Gordon waving at them. {¶8} According to Holsey, “something odd came about.” Holsey continued: As we was coming closer, he kept going back toward the fence. * * * That’s cool. But what didn’t make sense is what the neighbors — he’s an African American man and * * * there’s Caucasian white people right there and they’re just staring at him. And he’s waving us towards the gate. That didn’t make no sense. That was hot. As I mean hot that was too — that was too noisy policewise. The neighbors look like why is he there? That didn’t make sense to us. So as we drove off, Neeko Gordon wa s come here, right here. I got it right here. It didn’t make no sense at all. As soon as we went * * * he fired two, th ree shots as he was running towards the car. * * * What I could see was him waving us towards the — trying to get us to exit the vehicle towards the car. We said no. There was people out there that was staring at him out the window like why is he right there and there was another guy on his porch looking him [sic] weird. We wa sn’t going to get out of the [sic] and do a drug deal and somebody call the police right there.

* * * It was pure daylight. He was the only A frican American man by that fence and by that area and the rest were just tw o white guys and somebody staring out the window. {¶9} Asked what Gordon was wearing that day, Holsey replied, “Neeko Gordon was wearing an orange shirt. He had on like somethin g on top of his shirt like he was holding like a towel because it was hot or a T-shirt because it was real hot.” Holsey further testified thatGordon was wearing “black or bl uish” sweatpants. Holsey testified that, from his “vantage point,” he did not see Gordon with a gun. As ked how he knew that Gordon fired the shot, Holsey testified as follows: Because as I heard the first gunshot I looked back instantly and I could see through that side window right him going like this, his arm extended like this, orange T-shirt something still above his thing but there de finitely was an object in his hand there should be no reason his ar m was up pointed towards as soon as I looked through that side window right there and after the last shot I could see him run down.

* * *

He ran towards the main street. He seem ed like he was just running. I’m sorry. It was a quick glance. It was fast because I wanted to duck from the bullet. But as soon as I looked through that side wi ndow was Neeko that guy right there with his arm up pointed forward just like that. And I grabbed [Nieves] and I grabbed his head down so he wouldn’t get hit but he was already dead. It was him. It was him. It was him. {¶10} Holsey testified that after he heard the first gunshot and noticed that Nieves was dead, he grabbed Nieves and “went down. I h it the gas pedal with my hand while grabbing [Nieves] and I’m steering and I ju st flew down the street. * * * I know I had to hit two or three cars but that’s what I had to do. It was gunshots going.” Holsey made it to the next street and “threw” Nieves in the back seat of the car. Holsey drove toward MetroHealth, but he rear-ended another car at the corner of W. 25th and Meye r Avenue. Holsey calle d 911. Holsey testified that Nieves was bleeding “uncontrollably” and ultimately Nieves was taken by ambulance to the hospital. {¶11} Holsey told the police that he knew where the person who shot Nieves was. “I know what house he at.” Holsey testified that when he played basketball with Gordon, Gordon was “always in front of that house on 41st.” Ho lsey told the police the shooter’s name was“Neeko” and described his appear ance, including “a tattoo that says ‘Heaven’ right here on his chest.” The police drove Holsey to the house he identified at 3252 W. 41st Street. Gordon was there and the police brought him outside. Gor don had changed his pants and had no shirt on, but Holsey identified him as the person who shot Nieves. {¶12} On cross-examination, Holsey testified that he saw Gordon in the driver’s side-view mirror “running towards the car with his arm extended,” although Holsey did not see Gordon with a gun. Defense counsel asked Holsey the following: Q: Well, what did Neeko have in his ha nd every minute of this video that you just watched? What did he have in his hand the whole time he talked to you by that car? What did he have in his hand? A: A phone. Officer Noel Hernandez {¶13} Cleveland police patrol offi cer Noel “Bo” Hernandez te stified that on August 25, 2016, he responded to an emergency call of “a male shot * * * in the area of W. 38th and Clark.”

Officer Hernandez was rerouted to W. 25th Street and Meyer Avenue, where the shooting

victim and the driver were i nvolved in a motor vehicle accide nt. When officer Hernandez arrived at the scene, he saw a white car and Hols ey “outside screaming fo r help. Screaming for my help and screaming for police help and yelling at us that his brother has been shot.” According to Officer Hernandez, Holsey was “hysterical.” {¶14} Holsey indicated that he knew who the shooter was, and he believed he knew

where the shooter went — to a house on “41st and Storer.” Officer Hernandez called his Lieutenant and got permission to bring Holsey to the house in question. Police officers knocked, and three black males opened the front door. All three males were shirtless. All three denied being in the area of the shooting. The police to ld the men they were “investigating a shootingthat happened not too long ago.” One officer also stated, “and this might be related to a possible homicide.” Gordon responded, “So he died?” {¶15} The officers took Gordon outside for a co ld stand. Officer Hernandez “heard [Holsey] scream that’s him. That’s the shoot er. That’s the guy who killed [Nieves].” The police arrested Gordon at this time.

Detective Walter Emerick {¶16} Cleveland police detective Walter Emerick testified that he works for the crime scene investigation unit, and he performed a gunshot residue test on Gordon’s hands while Gordon was outside on W. 41st Street, just over two hours after the shooting took place. Detective Emerick also recovered an “[o]range T-shirt out of the hamper within one of the bedrooms,” a black cell phone, and “.22 live rimfired rounds,” whic h are unfired bullets. On cross-examination, Det. Emeric k testified that he did not “bag” Gordon’s hands nor were Gordon’s hands bagged at anytime that he was aware of.

Detective David Borden {¶17} Cleveland police homicide Det. David Bord en testified that he responded “to the

intersection of W. 38th and Robe rt [Avenue] and we started to canvass the area for witnesses and other evidence that might be useful in this ho micide investigation.” De t. Borden spoke with Anthony Sobczyk, who lives one or two houses fro m where the shots were fired. Sobczyk gave the following description of the suspect: “bl ack male, five-ten, five -eleven, medium build, wearing a red shirt and blue jean s and short hair.” According to Det. Borden, Sobczyk informed him that the suspect used a revolver in the shooting and fired two shots. Det. Borden testifiedthat the police did not find any shell casings on the scene. According to Det. Borden, “[r]evolvers do not eject casings.” {¶18} Det. Borden testified that he interviewed Farmer Baker, who lives on the corner of

W. 38th and Robert Avenue and saw “an indivi dual running west on R oberts” wearing a red

shirt. Forensic Scientist Lisa Przepyszny {¶19} Lisa Przepyszny testified that she is a forensic scientist in the trace evidence department of the Cuyahoga County Medical Exa miner’s Office. Przepyszny analyzed the gunshot residue test taken fro m Gordon’s hands on August 25, 2016. She found “particles that were characteristic of * * * g unshot primer residue and that w ould indicate that either the individual fired a gun, was in close proximity to a fired gun, or handled an object that had gunshot residue on it.” Deputy Medical Examiner Dr. Todd Barr {¶20} Dr. Todd Barr testified that he is a forens ic pathologist who is serving as a deputy medical examiner in the Cuyahoga County Medi cal Examiner’s Office. Dr. Barr performed Nieves’s autopsy on August 26, 2016, and conclude d that Nieves died from “a gunshot wound to the head and neck.” In Dr. Barr’s opinion, Niev es’ wound “is most consistent with a distant gunshot wound [of] [g]reater than four feet.” A ccording to Dr. Barr, “the path of the projectile,

it entered in the * * * left side in the back of the neck, back of the head, and basically went through the skin soft tissue muscles. * * * And then it travels through and fractures one of his neck bones, one of his vertebrae. * * * And then it comes out through the back of his mouth * *

*.” Dr. Barr determined that th e manner of death was homicide. Eyewitness Anthony Sobczyk{¶21} Anthony Sobczyk testified that he lives at 3278 W. 38th Street in Cleveland, and on August 25, 2016, at about 4:30 p.m., he witnesse d a shooting on his street. He was getting pizzas out of the passenger side of his car, wh ich was parked on the street, when he saw a “[b]lack male, about 18, short, short hair, medium build” walkin g “suspiciously” down the street. Sobczyk testified that the person was wearing “I believe jeans and I think a bright shirt.” According to Sobczyk, this person was suspic ious because “in a matter of seconds he disappeared. * * * He crouc hed behind the fence.” {¶22} Sobczyk’s testimony continue d: “Then I seen a white car coming down the street slowly. It wasn’t racing or nothing. Stoppe d at the stop sign. Next thing I know the guy jumped up, went in the street, fi red the shot, car took off, he t ook off, that was it.” Sobczyk testified that he did not see anybody else on the street, and he only heard one shot. According to Sobczyk, the man was about 15 feet from the car when he fired the shot.

Officer Jonathan Holub {¶23} Cleveland police officer Jonathan Holub testified that he is Officer Hernandez’s partner, and he was driving th eir zone car on August 25, 2016, when they responded to the shooting in question. The officers first went to W. 38th and Clark, near where the shooting occurred, then went to W. 25th and Meyer, where Holsey and Nieves got into the car accident. Next, Officer Holub drove Officer Hernandez and Holsey, who was in the backseat, to “the area of W. 41st [and] the house where the suspect was.” {¶24} After Gordon’s arrest, Gordon is capture d on Officer Holub’s body camera talking to a relative through the police car window. This family member came outside from the house where the police found Gordon. After reviewing the video from his body camera, Officer Holubtestified that Gordon sa id, “it’s not enough. [T]hey don’t got shit on me.” Officer Holub further

testified that Gordon “said he was alone” at the time of the incident. Eyewitness Letha Sanchez {¶25} Letha Sanchez testified that she was sitting on the front porch of a home located at W. 38th Street and Robert Avenue on August 25, 2016, when she heard gunshots. Sanchez hurried off the porch and saw “somebody go by w ith a red shirt and black pants on. And it looks like he was putting a gun in his poc ket as he was running. * * * I just hurried up and * * * got in my car and left.” Sanchez testified that she “was in a panic” and her observation “was real

brief.” Sanchez recalled that the person was “a black male,” but other than his clothing, she could not identify him. Sanchez di d not recall seeing anybody else. Detective Thomas Lynch {¶26} Cleveland police Det. Thomas Lynch tes tified that he inte rviewed Gordon, who had been taken into custody at 3252 W. 41st Street . Gordon was in the back seat of a zone car and agreed to speak with Det. Lynch about “wha t was going on that day.” Det. Lynch testified that Gordon said he was at his girlfriend’s house, then he took the bus to W. 25th Street and Clark, “then made his way to the convenience store on Fulton, Fulton Beverage * * *.” Gordon ran into Holsey, who “he knew from the neig hborhood, I believe he said it was from playing basketball * * *.” Gordon told Det. Lynch that he was wearing a white T-shirt when he saw Holsey. Gordon said he took the white T-shirt o ff at his aunt’s house on W. 41st Street, “before the police arrived.” Det. Lynch asked Gordon if he had a cell phone, and Gordon told him that he did not, because he smashed it after a fight with his girlfriend and threw it in a dumpster. {¶27} Det. Lynch testified that the police obt ained permission from the owner of the

house on W. 41st Street to “take a look around” for a gun. The police recovered Gordon’s cellphone and “some bullets” from the owner of the house’s bedroom. Additionally, they “recovered an orange shirt with a stain on the front of it” from a clothes hamper. {¶28} Det. Lynch interviewed Gordon again at th e police station the next day. Gordon now told police that he had two cell phones, th e one he smashed and the one found in the house on W. 41st Street. Additionally, when the poli ce told Gordon that surveillance video from the day of the shooting showed him wearing an orange shirt — and not a white one, which is what he previously told the police — Gordon admitted that he had been wearing an orange shirt the day before. Gordon then gave the police “three ba sic stories as to what had occurred.” [T]he first time we asked him about what had happened he sa id that he was walking on West 38th Street when the car that he had talked to at the convenient store drove by him and he told us as the car drove by him, someone from behind him had shot at the car. * * * The second story that he told was that as he got to the corner after leaving the store and walking across the street as he was at the corner, the car passed by him and he saw the male that he had talked to at the store like had his hand in the air like he was saying what’s up and he — so he responded like what’s up like this, raising his hand up in the air. But he could not explain how Ricardo Nieves got shot. And then the third way he explained what had happened — basically about three-quarters of the way into the interview he’s like I’m going to tell you the truth.

And he * * * stated that as he was walk ing down West 38th Street the vehicle that he had encountered and spoke with Robe rt Holsey in at the convenience store came down the street and as this vehicle approached him, Robert Holsey was holding his hand in the air like he had a gun and that Neeko held his hand up in the air * * * like to scare him like he had a gun pointed in his direction and then Neeko heard a gunshot. And I asked him where did the gunshot come from and he couldn’t explain wher e the gunshot came from. {¶29} According to Det. Lynch, in all three versi ons of his story, Gordon claimed that he was by himself and that he ran away from the scene.{¶30} On cross-examination, Det. Lynch stated that he did not interview the two other

black males who were in the house on W. 41st Str eet at the time Gordon was arrested. He also stated that “one or two” of the eyewitnesses to the shooting that were interviewed stated that the shooter was wearing a red, rather than an orange , shirt. However, Det. Lynch testified that “[r]ed and orange is not a bi g discrepancy in my opinion.” [I]f someone was saying the shooter ha d a white shirt on, then we’d have a problem. Or if the shooter had a yello w shirt on, we have a problem. Red and orange can be easily mistaken. People see colors differently. I can see something as one color and someone else sees it as a different shade of bl ue or something along those lines. Red and orange in my opinion and Det. Sandoval’s opinion was not a huge discrepancy. {¶31} Det. Lynch testified that video surveillance footage taken from a nearby neighborhood camera shows Gordon “running down the alley” wearing an orange shirt at 4:41 p.m. on August 25, 2016, which is immediat ely after the shots were fired. {¶32} Det. Lynch testified that the orange shirt that was recovered from the clothes hamper was not the same orange shirt that Gor don was wearing in the video footage captured just prior to and after the shooting. {¶33} Det. Lynch also established that nobody saw Gordon with a gun on day of the shooting, and nobody saw more than one pers on running from the scene. The neighborhood eyewitnesses, who do not know Gordon, heard gunshot s and saw a black male in a “bright” or red T-shirt run away from the scene, headin g west on Robert. Holsey, who knows Gordon, heard gunshots and saw Gordon, through the side -view mirror of the car, approaching the car with his arm pointed out and then running from the scene.Toni Roberson {¶34} Toni Roberson testified that on August 25, 2016, she was living at 3252 W. 41st Street, and Gordon, who she has known “since he was about three,” was staying with

her. Gordon was friends with her son Joe Butler. On that day, Gordon called Roberson looking for

Butler. Roberson was at the store at the time. According to Roberson, there was nothing out of the ordinary about the call or the way Gordon sounded. When she went home, Gordon, Butler, another friend, and the police were there. Roberson gave the police permission to search her home. The police recovered bullets but did not recover a gun

from her house. Roberson te stified that the bullets the police found belonged to her, although she did not own a gun. Joseph Butler {¶35} Joseph Butler testified that, on August 25, 2016, he was living at

3252 W. 41st Street with his mother. He and Go rdon grew up together. That afternoon, Butler

was at a store on W. 38th and Newark when Gor don called him and said, “I just did a drill.”

Butler testified that a “drill” m eant that Gordon “just shot or killed somebody.” According to Butler, Gordon was “real hyped like, you know, ju st hyped, like real hyped, anxious and stuff. [H]e was asking where I was at, come home now, come home now.” Butler went home andGordon “was waiting for me at the screen door. A nd that’s when he went inside. He took his shirt off, like a peach shirt, he took it off, and then that’s when the cops * * *, everybody came and stuff.” Butler testified that Gordon put his sh irt “right on his dirty clothes, his clothes bag.” {¶36} Butler let the police in his house and he , Gordon, and another friend were asked questions. Although Gordon had told Butler th at he just shot somebody, Butler made no mention of this to the police. Asked why, Butler testified as follows:

A: Cuz I didn’t want to be involved ar ound this. I didn’t want to be doing this * * * what I’m doing now. I don’t want to be around the police, court, none of that, so I don’t want not hing to do with this. But since he’s trying to say I did it, yeah. Q: Did you do it?

A: No. Q: Did you have anything to do with it?

A: No. I wasn’t even there. {¶37} Butler testified that he knew Holsey thr ough other friends and they “hung out.” Eventually they stopped hanging out, and Butler testified as to why: A: When me and [Gordon] and [Holsey] , we hit a lick and [Holsey] hit his house for bread and we ain’t even seen him since that day. And probably like two and a half, three years. Q: All right. So you said that [Gordon] and [Holsey] hit a lick?

A: Yeah. Q: What does that mean? A: Basically, well, we went — we took somebody up top basically. Q: Took somebody up top? What does that mean? A: Strong arm them.Q: You robbed somebody? A: Well, basically. Q: With the two of them[?] A: Yeah, basically. Q: And then you said that he — A: He ran off. He just — Q: [Holsey?] A: He ran of[f] and we ain’ t never seen him since then. Q: And he took the money y ou were supposed to have? A: We supposed to split it basically but he went his separate way and that was that. We ain’t never seen him since then until — until he saw him. {¶38} Butler testified that “back in these da ys in August,” Gordon “was carrying a revolver,” and Butler saw Gordon w ith it “two days before” the shooting. Asked why Butler did not tell the police this, Butler re plied, “That was because I didn’t want to get involved with none

of this stuff at all. Period.” Butler tes tified that he did not carry a gun; however, on cross-examination, defense counsel introduced seven photographs Butle r posted on his Facebook page that showed him with a gun or multiple guns, more than one of which was a revolver.

Detective Joselito Sandoval {¶39} Cleveland police homicide Det. Joselito Sa ndoval testified that he and his partner Det. Lynch investigated the murder of Nieves in August 2016. Det. Sandoval testified that, according to Holsey, who witnessed the shooting, the suspect was named or nicknamed “Neeko.”After interviewing witnesse s and gathering information, Det. Sandoval found no reason to develop any other suspects in this case. We had learned that there was one suspect in this shooting * * *.

We also saw the direction that was consistent with the witnesses on the direction in which he fled from that intersection of West 38th and Robert which is the direction of the house we were at West 41st.

Also based on our interviews with Toni Roberson and her son and friend, they were consistent in their st atements that they weren’t present at the house when the shooting occurred and were at a different location up towards Clark Avenue and returned * * * just prior to the police arriving. {¶40} Det. Sandoval testif ied about surveillance video from a camera located at 3919 Robert Avenue, just west of W. 38th Street. The video shows that on August 25, 2016, at 4:38 p.m., Nieves’s white Corolla traveled through th e intersection of W. 38th Street and Robert Avenue. Gordon, who is wearing the same orange T-shirt with a dark colored shirt or towel over his shoulder that he was wearing in the Fult on Beverage video from earlier that day, is seen “running from where that car came fro m. There he goes. He runs to W. 39th Street up toward Hyde Court.” {¶41} Det. Sandoval next te stified about surveillance vide o taken from a camera located at 3929 Hyde Court. The video shows that on August 25, 2016, at 4:39 p.m., Gordon ran down Hyde Court, which is an alley, heading toward W. 41st Street and wearing the same orange

T-shirt with the dark shirt or towel over his shoulder. {¶42} Det. Sandoval next te stified about his fa miliarity with the county’s system of monitoring telephone calls made by inmates from the county jail. “Inmates when they arrive at county jail are given specific [PIN] numbers to them to make phone calls.” Det. Sandoval testified about a par ticular call that was played for the ju ry. Gordon allegedly identified himselfat the beginning of the call. “[T]hey have the gr eeting and part of the gree ting is they advise you this call is from — and they fill it in with thei r name, which was Neeko, a nd then it continued to advise you about it being monito red and recorded.” The pros ecutor then asked Det. Sandoval the following: Q: Were you able to hear the defendant in that clip talking about ditching the gun?

A: Yes. {¶43} Det. Sandoval testifie d that, essentially, Gordon’s phone conversation from jail is about a hypothetical. Asked if Gordon said that he “hid a gun,” Det. Sandoval answered, “No.” {¶44} Det. Sandoval next testifie d about a picture that he found posted on a Facebook page belonging to “Yonko Boolin.” Acco rding to Det. Sandova l, Yonko was Gordon’s

nickname. Det. Sa ndoval testified that there “appears to be a shotgun in his right hand and he’s standing next to a male in a yellow shirt that appears to have a firearm stuck in his waistband like

towards the front.” On cross- examination, Det. Sandova l testified that he does not know when this picture was taken, he does not know if the gun is real, and he does not know who the man in the photo is. {¶45} Det. Sandoval testifie d that the shirt that was confiscated from the house on W.

41st is not the same shirt that Gordon was wear ing in the video surveillance footage. Det. Sandoval testified that Holsey’s te stimony about what he saw throug h the side mirror of the car is

consistent with what the other witnesses saw. The actions of the suspect are identical to what the witnesses had given us. And you’re right, I understand red shirt, a nd * * * his pants were very dark blue. But, the action of the suspect and this vehicle at the intersection were described as Mr. Holsey describes it.So they kind of corroborated what he did tell us. And the dir ection of flight, it’s the same thing.

* * *

We have witnesses that were at that intersection that saw the shooter run up to the victim’s vehicle moving north bound at R obert Avenue, shoot into the car, the only person out there on foot , and then flee on Robert. We obtained video. If you’ll look at th e video, there’s only one subject that comes running in that direction from th at white car and it’s Neeko Gordon. And he runs downs the alley towa rds the house where he’s later found.

* * * But see the clothing he’s wearing; you see he’s one in the same from the store. * * * From the store he’s wearing the blue shir t over his shoulder just like he is in the alley where he’s seen with the blue shirt over his shoulder carrying his tennis shoes in the other and hi s hand down in his pocket. III. Sufficiency of the Evidence {¶46} Crim.R. 29 mandates that the trial court issue a judgment of acquittal when the prosecution’s evidence is insufficien t to sustain a conviction for th e offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis. State v. Taylor , 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134. “An appellate court’s function when review ing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if belie ved, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Driggins , 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 101, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).{¶47} The relevant inquiry is whether, afte r viewing the evidence in a light most favorable to the prosecution, any ra tional trier of fact could have found the e ssential elements of the crime proven beyond a reasonable doubt. State v. Vickers , 8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). {¶48} In the case at hand, Gordon argues that th ere was insufficient evidence to convict him of all counts, because the state failed to pr ove that he was the pe rson who shot and killed Nieves. “Every criminal prosecution requires proof that the person accused of the crime is the person who committed the crime. This truism is reflected in the state’s constitutional burden to prove the guilt of ‘the accused’ beyond a reasonable doubt.” State v. Tate , 140 Ohio St.3d 442, 19 N.E.3d 888, 2014-Ohio-3667, ¶ 15. {¶49} Specifically, Gordon argues that he was merely in the area of W. 38th St. and Robert Avenue, in Cleveland, wh en the shot was fired. Nobody saw him with a gun and no gun was recovered. Three eyewitne sses described a man wearing a red shirt and black pants who was running away from the scene. Holsey iden tified Gordon as the shooter, and it is undisputed that Gordon was wearing an orange shirt at the time of the shooting. According to Gordon, this evidence is insufficient to support his convictions. {¶50} Gordon was convicted of the following o ffenses: murder in violation of R.C. 2903.02(B); felonious assault in vi olation of R.C. 2903.11(A)(1); tw o counts of felonious assault in violation of R.C. 2903.11(A)(2); discharge of firearm on or near pr ohibited premises in violation of R.C. 2923.162(A)(3); tampering with evidence in violation of R.C. 2921.12(A)(1); and having a weapon while under disability in violation of R.C. 2923.13(A)(2). {¶51} Gordon’s arguments focus on the sufficiency of the evidence that he — rather than a black male with a red shirt — shot Nieves. As this assigned error only concerns theshooter’s identity, we need not analyze every el ement of each offense. Upon review of the record, particularly Holsey’s identification of Gordon as the shooter coupled with the surveillance video of Gordon running from the scen e, we find that the st ate presented sufficient evidence that, if believed, would convince the ju ry of Gordon’s guilt. Accordingly, Gordon’s first assigned error is overruled. IV. Manifest Weight of the Evidence {¶52} In State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, the Ohio Supreme Court addressed the standard of review for a criminal manifest weight challenge, as follows: The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541. In Thompkins , the court distinguished between sufficiency of the evidence and manifest weight of the evidence, fi nding that these concepts differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence’ s effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose evidence is more persuasive — the state’s or the defenda nt’s? We went on to hold that although there may be sufficient evidence to suppor t a judgment, it coul d nevertheless be against the manifest weight of the evidence. Id . at 387, 678 N.E.2d 541. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the a ppellate court sits as a ‘thirteenth juror’and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. {¶53} An appellate court may not merely substitute its view for that of the jury, but must find that “in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice th at the conviction must be reve rsed and a new trial ordered.” Thompkins at 387. Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case in which the evidence we ighs heavily against the conviction.” Id. {¶54} Gordon argues that his case is on point with State v. Williams , 8th Dist. Cuyahoga No. 95796, 2011-Ohio-5483, in which this court re versed a murder conviction because the defendant’s only link to the shooting was the te stimony of two other participants in the drug-deal-gone-bad who were implicated in the crime scene. Id. at ¶ 29-30. In Williams , this

court found that the appellant was not linked to the crime or crime scene by any tangible evidence. The only link between appellant and the shooting was the testimony of Jackson and Jefferson. Neither Jackson nor Jefferson came forward and provided statements to police until after DNA evid ence had physically linked each of them to the crime scene. The credibility of both of these witnesses was called into question at trial. * * * Only after Je fferson’s DNA was tied to the crime scene, and he was threatened with a charge of obstructing justice, did Jefferson implicate appellant in [the] shooting.

Id . at ¶ 29. {¶55} Similar to Gordon’s first assigned error, this argument concerns the shooter’s identity. Of the witnesses who te stified about the shooting, Holsey was the only one to identify Gordon as the shooter. Additionally , Butler testified that Gordon to ld him he “just did a drill” shortly after Nieves was shot.{¶56} Upon review, we find that Williams is distinguishable from the case at hand. First,

there is forensic evidence that implicates Gordon in Nieves’s shooting in that Gordon’s hands tested positive for gunshot residue. Second, Holsey immediately identified Gordon as the shooter, and Holsey was never implicated in this crime. Third, other ne utral eyewitnesses heard gunshots and saw a man dressed s imilar to Gordon at the scene and running away after the shots were fired. Fourth, Gordon is caught on video running away from the scene immediately after the shooting. Fifth, Gordon is caught on video ta lking to Holsey and Nieves immediately prior to the shooting, which corroborates Holsey’s tes timony that he had arranged to buy marijuana from Gordon. Sixth, Nieves’s autopsy report concl udes that he died from one bullet that entered the back of his neck on the left side and exited through his head and face. The autopsy also confirmed that the gun was fired more than four feet from Nieves. This is consistent with Holsey’s and Sobczyk’s testimony that the shooter was firing as Nieves was driving away, which was the position Gordon was in when the shooting occurred. {¶57} We cannot say that the jury lost its way in convicting Gordon of murder, felonious assault, discharging a firearm in a prohibited area, and having a weapon while under disability. {¶58} Additionally, the evidence shows that no gun was ever found. Furthermore, when police questioned Gordon at the house on W. 41st St reet not long after the shooting, Gordon was not wearing the orange shirt that he had on when he was running from the scene. That shirt was never recovered. Accordingly, we cannot say that the jury lost its way in convicting Gordon of tampering with evidence. {¶59} Gordon’s second assigned error is overruled.V. Admissibility of Evidence {¶60} “The admission or exclusion of relevant evidence rests within the sound discretion

of the trial court.” State v. Sage , 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). Pursuant to Evid.R. 401, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determinati on of the action more proba ble or less probable than

it would be without the evidence.” Relevant evidence is not admissible, however, “if its probative value is substantially out weighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R . 403(A). “Where evidence has been improperly admitted in derogation of a criminal defendant’s constitutional rights, the admission is harmless ‘beyond a reasonable doubt’ if the remaining evid ence alone comprises ‘overwhelming’ proof of defendant’s guilt.” State v. Williams , 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983).

A. Authentication of the Jail Call {¶61} Before evidence is deemed admissible at trial, it must be authenticated. Ohio law “provides a liberal standard for the authentication of evidence.” State v. Inkton , 8th Dist. Cuyahoga No. 102706, 2016-Ohio-693, ¶ 73. Pursuant to Evid.R. 901(A), authentication “is satisfied by evidence sufficient to support a findi ng that the matter in questions is what its proponent claims.” Specifically, Evid.R. 901(B)(5) states that a voice may be authenticated or identified, “whether heard firs thand or through mechanical or electronic transmission or recording, by opinion based upon hearing that voice at any time under ci rcumstances connecting it with the alleged speaker.” {¶62} In the case at hand, Det. Sandoval testif ied about a phone ca ll Gordon allegedly made from jail. The entirety of this direct examination testimony follows:Q: Detective, are you familiar with a system in place in the county jail to monitor phone calls made by inmates from the county jail?

A: Yes. Q: And can you give us a summary of how that system works as far as PIN numbers, identifiers like that and how calls are made? A: Inmates when they arrive at county jail are given specific numbers to them to make phone calls. And I think they have to have mone y on — either to make calls straight out, they would ha ve to have money reserved for those calls. Q: And each inmate is given a unique PIN number, correct?

A: Yes. Q: And that’s not just for their calls, it’s for anything that they would like to purchase in the jail their assigned an SO number; isn’t that right? A: That’s correct an SO number, yes. Q: And when those calls are made, are you aware that at the beginning of each call there’s a warning read by the system that the call will be recorded?

A: Yes. Q: I would then like to play for you * * * State’s Exhibit 335. And I’d like for you to * * * listen to the beginning first and then we’ll skim ahead to the pertinent parts. Okay?

* * * Q: Did you hear the defendant identify h imself at the beginning of this call? A: At the beginning of the call they ha ve the greeting and part of the greeting is they advise you this call is from — and they fill it in with their name, which was Neeko, and then it conti nued to advise you about it being monitored and recorded.

* * * Q: Were you able to hear the defendant in that clip talking about ditching the gun?A: Yes. {¶63} On appeal, Gordon argues that this ca ll was improperly admitted into evidence for two reasons: first, Det. Sandoval did not prope rly authenticate the call; and second, the content of the call was prejudicial. Gordon argues that the detective did not tes tify that he was familiar with or that he recognized Gordon’s voice; ra ther, “he answered a leading question in the affirmative.” Gordon next argues that the call was about a hypothetical and it had no relation to

the facts of this case. {¶64} Upon review, we find that the call wa s improperly authenticated. “To be admissible, a tape recording must be authentic, accurate, and trustworthy.” State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 109. Det. Sandoval did not expressly identify Gordon as the caller. Rath er, he testified that the caller identified himself as “Neeko” at the beginning of the call. Det. Sandoval also te stified that he was “present” for the “sit down interview” of Gordon at the poli ce station, approximately ten months before trial. According to the record, this is the only time Det. Sandoval h eard Gordon speak. Furthermore, although Det.

Sandoval testified a bout the basic process for making calls from the jail, he did not testify that the call played for the jury in the case at hand originated from Gordon’s PIN number. Additionally, Det. Sandoval did not testify as to the accuracy of the jail call process. {¶65} This court has previously held a jail call was properly authenticated when the following testimony was presented at trial: the victim testified that sh e received the calls in question from the defendant and identified his voice on the recording; and two employees from the Cuyahoga County Sheriff’s Office testified about how ja il calls are recorded and, particular to Christopher Thompson’s case, how they downl oaded calls made fro m Thompson’s inmatenumber and calls that Thompson made using another inmate’s account. State v. Thompson , 8th Dist. No. 96929, 2012-Ohio-921, ¶ 7-13. See also State v. St. Anthony Ford , 8th Dist. Cuyahoga No. 105698, 2018-Ohio-2128, ¶ 52 (“[W]e are concerned with the manner in which the state laid the foundation for the recordings of Ford’s jail-ce ll calls. Nevertheless, we cannot conclude that but for the introduction of the ja il-cell calls, the result of the proceedings would have been different.”). {¶66} Turning to the contents of the call, we find that the error in admitting evidence that was not properly authenticated was harmless. We cannot say that, but for the introduction of this jail call, Gordon would not have been convicted of killing Nieves. Pursuant to Crim.R. 52(A), “[a]ny error, defect, irregularity, or vari ance which does not affect substantial rights shall be disregarded.” This court ha s held that a “nonconstitutional e rror is harmless when there is substantial other evidence to support the guilty verdict.” State v. Ceron , 8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 97. {¶67} After reviewing the record, we find s ubstantial evidence to support Gordon’s convictions. Holsey, who knew Gordon, identifie d Gordon as the shooter. Two eyewitnesses saw a man dressed similarly to Gordon run away from the scene. Gordon was captured on video running away from the scene. Forensic ev idence shows gunshot residue on Gordon’s hands when he was arrested approxima tely two hours after the shooting. Butler testified that Gordon said he “just did a drill” after the shooting. {¶68} Accordingly, we conclude that the ja il call was not unfairly prejudicial, and Gordon’s third assigned error is overruled.

B. Authentication of th e Facebook Photograph{¶69} The leading case in Ohio regarding the authentication of electronically stored

information from social networ king websites appears to be State v. Gibson , 6th Dist. Lucas Nos. L-13-1222 and L-13-1223, 2015-Ohio-1679, which this court has cited with approval in State v.

Inkton , 8th Dist. Cuyahoga No. 102706, 2016-Ohio-693, ¶ 85-86. Facebook users often “post cont ent — which can include text, pictures, or videos — to that user’s profile page” delivering it to the user’s subscribers. These posts often include information relevant to a criminal prosecution: “party admissions, inculpatory or exculpatory photos, or online communication between users.” Authentication concerns arise in rega rd to printouts from Facebook “because anyone can create a fictitious account and masquerade unde r another person’s name or can gain access to another’s acc ount by obtaining the user’s username and password,” and, c onsequently, “[t]he potential fo r fabricating or tampering with electronically stored information on a social networking” site is high. (Citations omitted.) Gibson at ¶ 35. {¶70} In the case at hand, over Gordon’s objec tion, the trial court admitted a photograph

that Det. Sandoval testified he “came into th e possession of” from the Facebook page of Yonko

Boolin. Det. Sandoval testifie d that the home screen of Go rdon’s cell phone has the name “Yonko” on it. The picture, which is undated and contains no text or writing, shows two black males, one with a gun in the waistband of his j eans and the other holding what appears to be a shotgun in front of his face. Det. Sandoval tes tified that “Neeko Gordon has — appears to be a shotgun in his right hand * * *.” On cross-exa mination, Det. Sandoval furt her testified about the photo as follows: Q: Do you see anything on here that w ould say what date this was taken on?

A: No.

* * * Q: So we don’t know when it was taken, right? A: I cannot tell you. Correct.Q: And we don’t know whether this gun is even real, do we?

A: No. Q: And we don’t know who this guy is, do we? A: I don’t know him. {¶71} There is no evidence that Gordon has a Facebook page using the name Yonko

Boolin. There is no evidence about who retrieved this photo or when it wa s retrieved. There is

no evidence that Gordon is one of the men in the photograph. Upon review, we find that the state failed to present evidence to properly authenticate this photograph. Compare State v.

Yates , 8th Dist. Cuyahoga No. 96774, 2012-Ohio-919, ¶ 36 (finding that a MySpace.com photograph was properly authenticated when “t he state presented a representative from MySpace.com that testified as to the creati on of the MySpace account [and] testimony from a witness [identified] on the MySpace page as bein g a friend of Yates, that this was Yates’s MySpace account”). {¶72} Furthermore, we find that this photogra ph was improperly admitted as “other acts”

evidence. The state did not su ggest that one of the guns in the photograph was the murder weapon in the instant case. The photograph tends to show that Gordon is the type of person who has a gun, and therefore, it is probable to conclude that he acted in conformity therewith concerning the shooting of Nieves on the night in question. Under Evid.R. 404(B), evidence is inadmissible for this purpose. {¶73} Despite finding that the trial court e rroneously admitted the photograph, we must

determine if the error was harmless. As anal yzed previously in this opinion, this court

concluded that there was substa ntial independent evidence of Go rdon’s guilt. Therefore, wecannot say that the admission of photograph was prejudicial to Gordon. Although the court erred by admitting this photograph, we find that the error was harmless. {¶74} Accordingly, Gordon’s fourth assigned error is overruled. C. Other Acts Testimony that Gordon “Carries a Revolver” {¶75} Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See also R.C.

2945.59. {¶76} In State v. Crosby , 186 Ohio App.3d 453, 928 N.E.2d 795, 2010-Ohio-1584, ¶ 14-18 (8th Dist.), this court found that the tr ial court improperly admitte d testimony about the defendant being known to ca rry a gun in general. [T]he testimony about defendant bein g seen with a gun bears no * * * relationship to the offenses he was convict ed of. Four witne sses testified that defendant was known to carry a gun. The first witness testif ied that he knew defendant to carry a 9 mm gun; however, he had not seen defendant for two years prior to the night of the offense, and he did not see defendant with a gun on the date in question. The victim and another witness testified that they knew defendant to carry a 9 mm gun; however, no mention was made of an y time-frame or specific incidents when defendant was seen with a gun. The four th witness testifie d that he has known defendant to carry a gun, but not a 9 mm. Other than the victim’s testimony that defendant shot him, nobody te stified that they saw de fendant with a gun on or near the date of the offense. Furthermore, the weapon was not recovered in the instant case. Thus, the other acts evidence does not link defendant to the gun used to shoot the victim, and was therefore improperly admitted.

Id . at ¶ 14-16.{¶77} The Crosby court concluded that the admissi on of this testimony was harmless error under Crim.R. 52(A), because there was othe r credible evidence to support the defendant’s

convictions. Id . at ¶ 17-18. {¶78} In the case at hand, Butler testified as follows about Gordon carrying a gun: Q: Does Neeko carry a revolver?

A: Yes. Q: When did you see him with it prior to the shooting?

* * *

A: Like I told him 1 two days before. {¶79} We find that the case at hand is similar to Crosby . The gun was never recovered and there is no evidence other than speculation that a revolver was used to kill Nieves. “Federal and Ohio courts have recogniz ed the introduction of other wea pons evidence — i.e., irrelevant evidence of weapons unrelated to the charges — as error.” State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 36. The Thomas court noted that “[e]rror in admitting other weapons evidence falls generally into one of two categories: harmless erro r or prejudicial error requiring reversal.” Id. at ¶ 38. “Cases in which courts ha ve deemed error in the admission of other weapons evidence to be harmless genera lly involved overwhelming independent evidence of guilt.” Id . at ¶ 39. {¶80} As analyzed previously in this opini on, this court concl uded that there was substantial independent eviden ce of Gordon’s guilt; therefore, we find Butler’s other weapons testimony to be harmless. Accordingly, Go rdon’s sixth assigned error is overruled.

1 It is unclear from the record who “ him ” is. Butler previously testified that he knew Gordon to carry a gun sometime in August 2016.VI. Flight Jury Instruction {¶81} “A trial court should give a proposed jury in struction if it is a correct statement of the law and is applicable to the facts of the particular case.” State v. Rose , 8th Dist. Cuyahoga No. 89457, 2008-Ohio-1262, ¶ 18. “Flight from jus tice means some escap e or affirmative attempt to avoid apprehension.” State v. Wesley , 8th Dist. Cuyahoga No. 80684, 2002-Ohio-4429, ¶ 19. To warrant a flight in struction, there must be evidence “that the defendant took affirmative steps to avoid de tection and apprehension beyond simply not remaining at the scene of the crime.” State v. Johnson , 8th Dist. Cuyahoga No. 99715, 2014-Ohio-2638, ¶ 109. Whether to issue a particular jury instruction is reviewed for an abuse

of discretion. State v. Hill , 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578. {¶82} In the case at hand, it is undisputed that Gordon fled the scene, because he is caught on camera doing so. On appeal, Gordon ar gues that “the evidence merely established that appellant left the scene and went home.” However, the surveillance video shows Gordon running down the street and throug h an alley seconds after Nieves’s white Corolla is seen driving through the intersection and shot s were fired. This is more than “merely” going home. Furthermore, the court gave the jury a limiting instruction as follows:

You are instructed that the fact that the defendant fled the scene does not raise a presumption of guilt but it may tend to indicate the defendant’s consciousness of guilt. * * * [I]f you find that some other motive prompted the defendant’s conduct, or if you are unable to decide wh at the defendant’s motivation was, then you should not consider the evidence for any purpose; however, if you find that the facts support the defendant engaged in such conduct and if you decide that defendant was motivated by a consciousness of guilt, you may but are not requiredto consider that * * * evidence in deciding whether the defendant is guilty of the crimes charged. {¶83} Upon review, we that the evidence does not weigh in favor of Gordon merely running away from gunfire, because all of the w itnesses testified that there was only one black male crouching by the fence and coming toward the white car with his arm pointed when the shots were fired. Furthermore, there was only one black male running from the scene after the shots were fired. Accordingly, we find that the court did not abuse its discretion by instructing the jury regarding flight. Gordon’s fifth assigned error is overruled. {¶84} Judgment affirmed. It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution. Th e defendant’s conviction having been affirmed, any bail pending appeal is ter minated. Case remanded to the trial court for execution of

sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

PATRICIA ANN BLACKMON, JUDGE MARY EILEEN KILBANE, J., CONCURS; EILEEN A. GALLAGHER, A.J., CONCURS WITH ATTACHED OPINIONEILEEN A. GALLAGHER, A.J., CONCURRING WITH SEPARATE OPINION: {¶85} I concur with the judgment of my learned colleagues but write separately to address the admissibility of testimony related to the phone calls that emanated from the Cuyahoga County jail in this matter and that have been attributed to the defendant. {¶86} In this case, the state elicited testimony from a Cleveland Police Department homicide Det. Joselito Sandoval, as to the Cu yahoga County jail telephone call system. Det. Sandoval is not an employee of the Cuyahoga Count y Sheriff’s Department that has control of the jail operations. He pr ovided testimony as to the telephone monitoring system utilized in the Cuyahoga County jail along with testimony rega rding a call made by a person who identified

himself as “Neeko.” {¶87} It is my opinion that an employee of the Cuyahoga County Sheriff’s Department should have provided testimony as to the telephone system utilized in the county jail. It certainly would not have been onerous to have a representativ e of the sheriff’s department testify as to the process and then the cont ent of that phone call. {¶88} The state frequently uses law enforcement officers from municipalities to provide testimony as to Cuyahoga County jail operations, a nd I find it to be troubling. In this case, the

error is harmless but in the future, it may not be.