[Cite as State v. King, 2016-Ohio-3492.]


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

STATE OF OHIO                                        C.A. No.      15CA010829

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
EAN D. KING                                          COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   14CR090576

                                 DECISION AND JOURNAL ENTRY

Dated: June 20, 2016



        HENSAL, Judge.

        {¶1}     Ean King appeals a judgment of the Lorain County Court of Common Pleas that

convicted and sentenced him for trafficking in drugs. For the following reasons, this Court

affirms.

                                                I.

        {¶2}     Detective Christopher Constantino testified that he arranged for a confidential

informant to conduct a controlled purchase of heroin from Mr. King. Before the transaction, he

searched the informant to make sure that she did not have any money or contraband on her. He

then provided her with forty dollars for the transaction. He also outfitted her with a hidden

button camera that could capture audio and video of the sale.

        {¶3}     According to Detective Constantino, the informant met Mr. King in a mobile

home park in Elyria. Mr. King drove her to a parking lot, where they completed the drug sale.

Detective Constantino testified that he was sitting in another vehicle in the same parking lot and
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that he identified Mr. King, who he knew from other occasions, as the driver of the vehicle as it

passed by him. He could also see the informant sitting in the passenger seat. The detective

testified that he was able to listen to the informant’s conversation with Mr. King as it was

happening, but could not view the video in real time.     Following the sale, Mr. King drove the

informant to another location and dropped her off. The detective subsequently picked her up and

took possession of the heroin she had purchased. Because the detective wanted to keep using the

informant for other controlled buys, he did not arrest Mr. King until a later time. Police were not

able to recover the money that the informant used to buy the heroin.

        {¶4}   The Grand Jury indicted Mr. King for trafficking in drugs. Even though the

informant did not testify, the trial court allowed the State to play the video that the hidden

camera captured at trial. Detective Constantino also testified about his observations during the

sale.   After a jury found Mr. King guilty of the offense, the trial court sentenced him to

community control. Mr. King has appealed, assigning two errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED IN ALLOWING                              THE     IMPROPER
        AUTHENTICATION OF VIDEO EVIDENCE.

        {¶5}   Mr. King argues that the trial court incorrectly found that the video of the sale was

properly authenticated and, therefore, admissible. Evidence Rule 901(A) provides that “[t]he

requirement of authentication * * * as a condition precedent to admissibility is satisfied by

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

“The proponent need not offer conclusive evidence as a foundation but must merely offer

sufficient evidence to allow the question as to authenticity or genuineness to reach the jury.”

State v. Caldwell, 9th Dist. Summit No. 14720, 1991 WL 259529, *7 (Dec. 4, 1991). “The
                                                  3


admission of videotape evidence is a matter of discretion for the trial court.” State v. Turner, 9th

Dist. Summit No. 26591, 2013-Ohio-2433, ¶ 23. “A trial court abuses its discretion when it

makes a decision that is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135

Ohio St.3d 343, 2013-Ohio-966, ¶ 34.

       {¶6}       The Ohio Supreme Court has identified two methods of authenticating

photographic evidence such as video recordings. Midland Steel Prods. Co. v. U.A.W. Local 486,

61 Ohio St.3d 121, 129-130 (1991). Under the pictorial testimony theory, a video that is

illustrative of a witness’s testimony is admissible if it is a fair and accurate representation of the

events the witness recorded.       Id. at 129.   Under the “silent witness” theory, photographic

evidence “may be admitted upon a sufficient showing of the reliability of the process or system

that produced the evidence.” Id. at 130.

       {¶7}       In State v. Bell, 3d Dist. Seneca No. 13-12-39, 2013-Ohio-1299, a detective

outfitted a confidential informant with an audio and video recording device then sent him to

conduct a controlled buy.        During the buy, the detective maintained surveillance on the

confidential informant. While he was not able to see into the apartment where the buy occurred

or view the video recording in real time, he was able to listen to the audio of the buy as it was

happening. The Third District, noting the low threshold of authentication, determined that the

detective properly authenticated the recording at trial. Id. at ¶ 45; see also State v. Munion, 4th

Dist. Scioto No. 12CA3520, 2013-Ohio-3776, ¶ 21-22 (holding that detective could authenticate

video captured by confidential informant even though he never entered residence where drug

sale occurred).

       {¶8}       The facts of this case are similar to Bell. Detective Constantino placed the audio

and video recording device on the confidential informant and maintained surveillance of her
                                                4


during the controlled buy. He saw Mr. King and the confidential informant drive past his vehicle

and then park a short distance from him, which was where the controlled buy occurred. He was

also able to listen to the audio part of the recording in real time. We, therefore, conclude that,

even though the confidential informant did not testify, the detective’s testimony was sufficient to

allow the question as to the authenticity or genuineness of the video recording to reach the jury.

Caldwell, 1991 WL 259529 at *7. Mr. King’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING, OVER
       THE OBJECTION OF DEFENSE COUNSEL, HEARSAY TESTIMONY IN
       VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT OF THE
       UNITED STATES CONSTITUTION.

       {¶9}    Mr. King also argues that the trial court violated his constitutional right to

confront witnesses when it allowed the State to hear the statements of the confidential informant

that were on the video. According to Mr. King, the State had to establish that the confidential

informant was unavailable, which it did not attempt to prove.

       {¶10} We review the trial court’s admission of evidence over a Confrontation Clause

objection de novo. State v. McNair, 9th Dist. Lorain No. 13CA010485, 2015-Ohio-2980, ¶ 36,

quoting State v. Myers, 9th Dist. Summit No. 25737, 2012-Ohio-1820, ¶ 21. The Confrontation

Clause guarantees a criminal defendant the right “to be confronted with the witnesses against

him[.]” Sixth Amendment to the United States Constitution.           The Ohio Constitution also

provides criminal defendants with the right to confront witnesses in Article I, Section 10. Toledo

v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, ¶ 12 (6th Dist.).            The import of these

protections is that they “require[ ], wherever possible, testimony and cross-examination to occur

at trial.” Myers at ¶ 21, citing State v. Allen, 8th Dist. Cuyahoga No. 82556, 2004-Ohio-3111, ¶

17.
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       {¶11} The right to confrontation, however, “is not absolute and ‘does not necessarily

prohibit the admission of hearsay statements against a criminal defendant.’” State v. Madrigal,

87 Ohio St.3d 378, 385 (2000), quoting Idaho v. Wright, 497 U.S. 805, 813 (1990). For instance,

the Confrontation Clause bars only the admission of “testimonial” hearsay.           Crawford v.

Washington, 541 U.S. 36, 68 (2004). In Davis v. Washington, 547 U.S. 813 (2006), the United

States Supreme Court identified “statements made unwittingly to a Government informant” as

the sort of statements that “were clearly nontestimonial.” Id. at 825, citing Bourjaily v. United

States, 483 U.S. 171, 181-184 (1987); see also Ohio v. Clark, __ U.S. __, 135 S. Ct. 2173, 2182

(2015) (“Statements made to someone who is not principally charged with uncovering and

prosecuting criminal behavior are significantly less likely to be testimonial than statements given

to law enforcement officers.”).

       {¶12} Upon review of the record, we conclude that the statements that the informant

made during the controlled buy were not testimonial. Accordingly, their admission at trial did

not violate Mr. King’s confrontation rights. Mr. King’s second assignment of error is overruled.

                                               III.

       {¶13} Mr. King’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
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       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 this 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 document 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.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

GIOVANNA V. SCALETTA-BREMKE, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
