[Cite as State v. Jaskiewicz, 2013-Ohio-4552.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2012-T-0051
        - vs -                                   :

JEFFERY ALLEN JASKIEWICZ,                        :

                 Defendant-Appellant.            :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 11 CR
511.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C., Kent, OH              44240 (For
Defendant-Appellant).




THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Jeffery A. Jaskiewicz, appeals his conviction on one count of

 domestic violence in violation of R.C. 2911.25(A) and (D)(1) & (4). Following a jury

 trial, appellant was found guilty and sentenced to 30 months incarceration. The jury

 also found that appellant had two prior convictions for domestic violence, elevating his

 current offense to a third degree felony.
      {¶2}    The events giving rise to this appeal took place at approximately 11:00

a.m. on August 15, 2011, at the home of appellant and the victim, his wife at the time,

Andrea Jaskiewicz. They resided at 3438 Elmwood Ave., Howland Township, Trumbull

County Ohio. At that time, appellant and Andrea had been married approximately

three years, and had two children, Chaz, age 7, and Lindsey, age 4. Andrea also had

a child, Alexandria (aka “Alexis”), age 14, from a previous relationship.

      {¶3}    Appellant and Andrea began to argue over the whereabouts of appellant’s

debit card, given to Andrea the day before to purchase items from Wal-Mart. The card

accessed the account in which appellant’s regular paycheck was deposited, and he

often gave it to Andrea for family expenditures. Because appellant could not find the

card, he accused Andrea of stealing it. Andrea insisted she did not have it, and at

appellant’s request, Andrea permitted him to peruse through her purse in an effort to

find it. During the process of going through her purse, appellant proceeded to call

Andrea vile names, “hip-checked” her, and grew increasingly angry.          In response,

Andrea “hip-checked” appellant. Thereafter, appellant put Andrea in a chokehold over

the kitchen counter.      Andrea then attempted to use her legs to free herself from

appellant’s grip. Although appellant contends that Andrea kicked him in the testicles

“field goal” style, Andrea could not recall whether she did that, only that she attempted

to lift her leg in an attempt to retaliate.

      {¶4}    After eventually freeing herself, Andrea ran to the bathroom and used her

cell phone to call the police. Appellant simultaneously used the home phone to call the

police. Three Howland Township police officers responded to the scene. Patrolman

Jeff Spatar encountered appellant on the front porch and reported that appellant did not

appear injured or require medical attention, even though he claimed that Andrea kicked


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him in the groin. Patrolman Spatar noticed that Andrea had red marks around her

neck. She was also hysterical, requiring at least 45 minutes to calm down. Appellant

contends the red marks were self-inflicted when Andrea was in the bathroom calling

the police, and that he did not choke her.

      {¶5}   Unbeknownst to Andrea and appellant, Alexis, after having been

awakened by the yelling, observed a portion of the altercation from the hallway. Alexis

witnessed appellant choking Andrea and holding her down, and heard Andrea

repeatedly asking appellant to “stop.”       Alexis also testified that appellant regularly

called Andrea names like “bitch” and “whore” and that he did so during the altercation.

Alexis further testified that she then retreated back to her bedroom with her younger

sibling, Lindsey, in order to shield Lindsey from what was happening, and that they

remained there for several hours until their mother stopped crying.

      {¶6}   Appellant appeals his conviction assigning the following as error:

      {¶7}   “[1.] The trial court erred, abused its discretion and prejudiced the

appellant by overruling the appellant’s objection to the admission of State’s Exhibit 4.

      {¶8}   “[2.] The appellant’s conviction for domestic violence is against the

manifest weight of the evidence.”

      {¶9}   In his first assignment, appellant takes issue with State’s Exhibit 4, a

redacted audio disk of telephone calls made by appellant during the time he was

incarcerated at the Trumbull County Jail. This recording was introduced by Assistant

Warden, Tracey Wix, the custodian of records for CD’s of telephone calls coming from

prisoners at the Trumbull County Jail to outsiders. Appellant contends the CD was not

properly authenticated because Tracey Wix did not create State’s Exhibit 4 herself, had

never seen it prior to the day of trial. Ms. Wix testified that she ordered the recording


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from the Sheriff’s Department at the direction of the prosecutor with respect to calls

placed by appellant to particular telephone numbers, and that she had listened to

some, but not all, of the recording. Appellant’s trial counsel objected to its introduction

into evidence and submission to the jury, which objection was overruled. Appellant

insists that Ms. Wix must have personal knowledge of the contents of State’s Exhibit 4

prior to its introduction into evidence.

      {¶10} Appellant also maintains that this authentication error amounts to

reversible error. Specifically, appellant contends that the contents of the recording

were unduly prejudicial because on the tape in question, in which he was speaking to

his mother, his mother references a “fourth” incident in the last three years, an incident

which was not presented to the jury in the form of documentary evidence to support the

instant felony conviction.       That fourth incident was a non-domestic violence

misdemeanor offense for disorderly conduct.

      {¶11} In State v. Thompson, 8th Dist. Cuyahoga No. 96929, 2012-Ohio-921,

¶27-29, the court stated:

      {¶12} “Evid.R. 901 governs the authentication of demonstrative evidence,

including recordings of telephone conversations. The threshold for admission is quite

low, and the proponent of the evidence need only submit ‘evidence sufficient to support

a finding that the matter in question is what its proponent claims.’ Evid.R. 901(A).

‘[T]he proponent must present foundational evidence that is sufficient to constitute a

rational basis for a jury to decide that the primary evidence is what its proponent claims

it to be.’ State v. Tyler, 196 Ohio App.3d 443, 2011-Ohio-3937 * * * ¶25, citing State v.

Payton, 4th Dist. No. 01-CA2606, [2002 Ohio App. LEXIS 496 (Jan. 25, 2002)]. A




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proponent    may    demonstrate    genuineness     or   authenticity   through   direct   or

circumstantial evidence. Id., citing State v. Williams, 64 Ohio App.2d 271, 274 * * *.

      {¶13} “For a recorded telephone call to be admissible, the recording must be

‘authentic, accurate, and trustworthy.’ Tyler at ¶26, citing State v. Were, 118 Ohio

St.3d 448, 2008-Ohio-2762 * * *. But, because ‘conclusive evidence as to authenticity

and identification need not be presented to justify allowing evidence to reach the jury,’

the evidence required to establish authenticity need only be sufficient to afford a

rational basis for a jury to decide that the evidence is what its proponent claims it to be.

State v. Bell, 12 Dist. No. CA2008-05-044, 2009-Ohio-2335, ¶17, 30.

      {¶14} “Thus. * * * to establish that the audio recording was what the state

claimed it to be, namely, recordings of jailhouse conversations (* * *), the state was not

required to ‘prove beyond any doubt that the evidence is what it purports to be.’ State

v. Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, ¶12, citing State v. Aliff, 4th

Dist. No. 99CA8, 2000 Ohio App. LEXIS, 1676 (April 12, 2000). Instead, the state

needed only demonstrate a ‘reasonable likelihood’ that the recording was authentic.

Bell at ¶30, citing Evid.R. 901(B)(1). Such evidence may be supplied by, but is not

limited to, the testimony of a witness with knowledge, voice identification, or by

evidence that a call was made to the number assigned at the time by the telephone

company to a particular person. See Evid.R. 901(B)(1), (5), and (6); Moshos at ¶14;

State v. Small, 10th Dist. No. 06AP-1110, 2007-Ohio-6771, ¶38.”

      {¶15} Here, the state satisfied their burden of putting forth evidence of

authentication by the equivalent of a telephone number.            Ms. Wix testified that

appellant was given a unique pin number that he has to use to make calls using the jail




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phone.    Ms. Wix’s testimony identified appellant’s pin number and used that pin

number to make the recording. Accordingly, the recording was properly admitted.

      {¶16} Appellant’s first assignment of error is without merit.

      {¶17} Under his second assignment of error, appellant contends that his

conviction was against the manifest weight of the evidence. Specifically, he points to

minor inconsistencies between Andrea’s 911 call and her testimony at trial.             For

example, at trial, Andrea insisted that appellant choked her with one hand, whereas in

her prior 911 statement she used the word “hands.”       At trial, Andrea said she did not

recall being kicked, however, her 911 statement indicated she had been kicked and

pushed to the ground. Furthermore, at the time of trial, Andrea was pregnant with a

child by Alexis’ father, her former paramour. Thus, appellant contends that it was

Andrea’s intent all along to raise additional domestic violence charges against him,

knowing that appellant would be facing a felony charge based on his prior convictions.

Contrarily, appellant contends that his testimony was consistent with his 911 statement,

thus making his version of the events more credible than Andrea’s.

      {¶18} “To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact ‘lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’ State v. Thompkins, 78 Ohio

St.3d 380, 387 * * * (1997). In weighing the evidence submitted at a criminal trial, an

appellate court must defer to the factual findings of the trier of fact regarding the weight

to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio




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St.2d 230 * * * (1967), paragraph one of the syllabus.” State v. Dykes, 11th Dist. Lake

No. 2012-L-021, 2013-Ohio-872, ¶18.

      {¶19} “As a general proposition, we have consistently indicated that questions of

witness credibility are primarily for the trier of fact to decide. [State v. Johnson, 11th

Dist. No. 2009-T-0042, 2010-Ohio-1970, ¶17] citing State v. DeHass, 10 Ohio St.2d

230 (1967), paragraph one of the syllabus. The basis of this proposition is that the trier

of fact is in a much better position to observe the body language, demeanor, and voice

inflections of the witnesses. Id.” State v. Meeks, 11th Dist. Lake No. 2011-L-066,

2012-Ohio-4098, ¶37.

      {¶20} Our review of the evidence, as outlined above, reveals that a variety of

competent, credible evidence was adduced at trial and presented for the jury’s

consideration, “and the determination as to weight and credibility of that evidence was

exclusively within the jury’s purview.” Dykes, at ¶21. The state presented testimonial

evidence from Andrea, Alexis, the responding police officers at the scene, Robert Laird,

the operations manager at the Trumbull County 911 Center, and Traci Wix, the

assistant warden at the Trumbull County Sheriff’s office, who recorded appellant’s

outgoing calls from the jail. Andrea’s and Alexis’ testimony were consistent with one

another.

      {¶21} The jury heard appellant’s recorded calls to his mother in which he made

comments about further harm that he wished he had inflicted on Andrea.             These

statements were contradictory to his own testimony in which he claimed he never lost

his temper and never called Andrea names. Additionally, appellant demonstrated no

outward signs of injury, although he claimed that Andrea had kicked him, thrown a

water glass at him, and spit on him.       Furthermore, the de minimus inconsistency


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between Andrea’s 911 call and her testimony could certainly be due to the passage of

time between the incident and trial, as well as the traumatic nature of the events

involved. Moreover, the difference between appellant using one “hand” or two “hands”

is not relevant. The fact alone that Andrea was choked, whether it be with one hand or

two, is the dispositive factor.

      {¶22} The jury, as the fact finder, was free to believe all, part, or none of the

testimony of each witness appearing before it. Hill v. Briggs, 111 Ohio App.2d 405,

411 (10th Dist.1996), and the trial court instructed the jury accordingly.            When

assessing witness credibility, the choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact, in this case the jury, and we

cannot substitute our judgment for that of the jury.      In this case, the jury elected to

believe the state’s witnesses. In view of the evidence presented, we cannot say that

this decision constitutes a manifest miscarriage of justice or that the jury lost its way.

      {¶23} Appellant’s second assignment of error is without merit.

      {¶24} Based on the foregoing, it is the order and judgment of this court that the

judgment of the Trumbull County Common Pleas Court is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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