[Cite as State v. Thomas, 2019-Ohio-2795.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2017-P-0094
        - vs -                                 :

JAVON M. THOMAS,                               :

                 Defendant-Appellant.          :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
00022.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Neil P. Agarwal, 3732 Fishcreek Road, #288, Stow, OH 44224 (For Defendant-
Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Javon M. Thomas, appeals his convictions and

sentence for Murder, Felonious Assault, and Negligent Homicide, following a jury trial in

the Portage County Court of Common Pleas. The issues to be determined by this court

are whether counsel is ineffective and reversible error is committed when a castle

doctrine instruction is not requested or given in a case where there is evidence to

support an affirmative defense of self-defense and whether the trial court errs in failing

to admit text messages that have been extracted from a phone but the owner of the
phone is not identified. For the following reasons, we reverse the judgment of the court

below and remand for further proceedings consistent with this opinion.

      {¶2}   On January 12, 2017, the Portage County Grand Jury issued an

Indictment, charging Thomas with Murder (Count One), an unclassified felony, in

violation of R.C. 2903.02(A), and Murder (Count Two), an unclassified felony, in

violation of R.C. 2903.02(B). A Supplemental Indictment was filed on March 31, 2017,

charging Thomas with two counts of Aggravated Murder (Counts Three and Six),

unclassified felonies, in violation of R.C. 2903.01(A); Murder (Count Four), an

unclassified felony, in violation of R.C. 2903.02(A); Murder (Count Five), an unclassified

felony, in violation of R.C. 2903.02(B); and two counts of Felonious Assault (Counts

Seven and Eight), felonies of the second degree, in violation of R.C. 2903.11(A)(2) and

(D). All eight counts had firearm specifications pursuant to R.C. 2941.145.

      {¶3}   A trial was held on October 4 through 12, 2017. The following pertinent

testimony was presented:

      {¶4}   On the night of January 6, 2017, and into the early morning hours of

January 7, Sadie Ochsenbine held a small party at her apartment with friends and

coworkers. Present at the party were Thomas, whom Ochsenbine described as having

an “off and on” relationship with her, his friend Marlon Daniels, Destany Dixon, and

Ochsenbine’s coworkers, Austin Tiller and Rachel Gundlach. Ochsenbine testified that

Thomas “periodically” spent nights at her residence, sometimes staying a few days or a

week there. During the party, they played a drinking game and a virtual reality game.

At one point, Dixon and Thomas got into a verbal argument over a joke Thomas made

about Dixon playing the virtual reality game rather than drinking. Ochsenbine testified




                                            2
that Tiller intervened to calm the situation, but Dixon stopped socializing, made a phone

call, and left soon thereafter.

       {¶5}   According to Ochsenbine, about an hour later, Dixon, who lived in an

upstairs apartment, called and said she would return. Dixon entered the apartment with

her boyfriend, Brian Brack. Ochsenbine stated the others in the room had never met

Brack and did not know him. She described Dixon and Brack as having an “attitude,”

smirking upon entering, and immediately proceeding to sit on the couch. Brack made a

comment about everyone being quiet and Ochsenbine responded there was no reason

for him to be there. He then stood up, “drew his weapon [from his jacket pocket] and

said that no one was going to disrespect his girlfriend.” He pointed his weapon at

Thomas, who had his weapon pointed at Brack. Ochsenbine then heard shots being

fired and saw Thomas “backing up” toward the hallway in the apartment. People began

running, she saw Tiller on the floor, and called 911.

       {¶6}   Marlon Daniels also described the argument between Thomas and Dixon

arising from a joke. Dixon left the party and returned with Brack around 4 or 4:15 a.m.

Daniels testified that he believed immediately when Brack entered he had a firearm in

his hands because of the way he had his hands in his pockets. Daniels testified that

Dixon had body language that he interpreted as meaning “what are you going to do

now” directed toward Thomas.

       {¶7}   After the two sat down, Daniels heard Brack make several statements

about it being quiet in the apartment and have a verbal exchange with Ochsenbine.

Daniels heard the sound of a round being placed in the chamber of a gun, coming from

Thomas’ direction and heard Thomas say, “It’s not going down like that.” He looked up




                                            3
and saw Thomas’ hands were empty. Brack then pulled out a gun, reached around

Dixon, pointed it at Thomas, and Daniels jumped behind the couch. He heard multiple

shots but did not know who fired them. After the shooting, Thomas said something like,

“I had no choice” or “look what he made me do.” Daniels believed Thomas saved his

life that day.

       {¶8}      Rachel Gundlach testified that following the joke, Dixon had “threatened to

call people,” or “have her people come and talk to” Thomas, spoke on the phone, and

left around 3 a.m. She returned with Brack around 4 a.m. The two sat down on the

couch and Ochsenbine asked why they were there. Gundlach looked over and saw

Thomas had a gun in his lap and looked upset. Thomas stood up with his gun “and

then almost simultaneously,” Brack stood up with his gun and they started shooting.

She testified that she believed Thomas shot first, although indicating it happened very

fast. Gundlach stated that she had not felt threatened when Brack entered and he did

not do anything aggressive.

       {¶9}      On cross-examination, Gundlach’s taped interview with police after the

incident was played in which she had stated that Brack stood up first and pointed his

gun at Thomas, which was when the shooting started. Gundlach testified that she

believed Thomas had stood up first but she could not remember exactly.

       {¶10} According to the testimony of Ravenna Police Department Sergeant

Dustin Svab and Patrolman Andrew Wert, they arrived at the apartment complex

following a 911 call and encountered Thomas driving out of the complex. He was

stopped, detained, and Patrolman Wert recovered an unloaded Magnum Research

Micro .380 firearm from his left front pocket. Sergeant Svab responded to the scene of




                                               4
the shooting and saw Brack lying in the shared hallway outside of Ochsenbine’s

apartment, deceased. Tiller was lying in the living room of the apartment and had also

passed away. Dixon had gone upstairs to her mother’s apartment and had gunshot

wounds to her legs.

           {¶11} Daniel Winterich, a special agent with the Ohio Bureau of Criminal

Identification and Investigation (BCI), examined the crime scene and located bullet

holes on a couch cushion and nearby fast food container. Two bullets were recovered

from that section of the couch, where witness testimony established Dixon had been

sitting, and one was recovered from the television across the room. A Kel-Tec .9mm

gun, which testimony established was used by Brack, was located on the floor near the

front door of the apartment. Two casings from the Kel-Tech were located near the

couch where Brack was sitting. Five casings from Thomas’ Magnum Research Micro

.380 were located primarily in the corner of the room near where Thomas had been

sitting.

           {¶12} Dr. Todd Barr, Deputy Medical Examiner for the Summit County Medical

Examiner’s Office, performed autopsies in this matter. Brack suffered a gunshot wound

to his foot and chest, with the chest wound being the cause of death. Barr testified the

angle of the bullet projected downward, which could have been consistent with him

either sitting or standing at the time he was shot. Tiller suffered four gunshot wounds,

one in his thigh and three that entered through his back.      Dr. Dean DePerro, the

Portage County Coroner, ruled that the manner of death for both victims was homicide.

           {¶13} Dr. Arnold Feltoon treated Dixon at the University Hospitals Portage

Medical Center, testifying that she suffered gunshot wounds to both of her thighs. A




                                            5
bullet had passed through her right leg and a bullet remained in her left leg because it

would cause no long-term damage.

      {¶14} Johnathan Gardner, who works in the firearms section of the BCI, testified

that Brack’s firearm, a .9mm Kel-Tech, was the source of the bullet fragment in Tiller’s

hip and the bullet in the television. He testified that the bullets recovered in Brack’s

body and two located on the couch were fired from Thomas’ firearm, the Magnum

Research .380.

      {¶15} Samuel Troyer, a BCI forensic DNA analyst, testified that one of the

bullets recovered from the couch contained the DNA of both Tiller and an unidentified

female.

      {¶16} Robert Wain, the information technology director for the Ravenna Police

Department testified that he extracted data from a phone suspected to belong to Dixon

and prepared a report of messages on the phone. The State objected to any questions

regarding the records, arguing they would need to be authenticated by the phone

company or Dixon. Defense counsel’s argument that the text conversations should be

admissible since they were retrieved by the witness was rejected by the trial court and

no testimony or evidence relating to the content of the messages was permitted.

      {¶17} Dwayne Kaley, a detective for the Ravenna Police Department testified

that he recovered a phone from the hallway outside of apartment 301, the floor above

Ochsenbine’s apartment, a warrant was obtained to search the phone, and the police

identified the phone as belonging to Dixon, although there was no testimony as to how

that was determined.

      {¶18} Following the close of the State’s case, Thomas moved for dismissal




                                           6
pursuant to Crim.R. 29. The court dismissed Counts Three and Six, the Aggravated

Murder charges.

       {¶19} For the defense’s case, Thomas testified that he had been dating

Ochsenbine on the date of the incident and stayed at her apartment a couple of times a

week. The day of the party, he was carrying his gun, for which he had a concealed

carry permit. He did not have a round in the chamber because the gun has no safety.

During the party, Thomas made a joke about Dixon not drinking, she became upset,

and started texting, got on her phone, and made a comment to the person on the phone

that Thomas had been “talking to [her] crazy.” She left but returned later with Brack,

whom Thomas did not know. Thomas testified that as they were walking in, he saw

Brack place a gun into his jacket pocket and then keep his hand in his pocket “like he

was still holding it.” Thomas was afraid when he saw the gun so, when Brack turned his

back to close the door, Thomas reached for his firearm out of his jacket pocket, placed it

in his lap, and covered it with his hand.

       {¶20} Thomas testified that, based on Brack and Dixon’s demeanor, he believed

they were “trying to start an issue.” Brack made a comment about how everyone was

quiet and had nothing to say. Dixon mumbled “say something now,” directed toward

Thomas. Brack said that no one should be “talking to my girl crazy,” started pulling his

gun, and leaned forward in his seat. Once he pulled his gun, Thomas chambered a

round. Brack pointed his gun at his face and Thomas lifted his gun. As Thomas began

to get up from the chair, Brack fired. Thomas testified that he stumbled backwards into

the wall, heard another shot, and began firing his gun rapidly toward Brack in self-

defense, and ran into the back room. Afterward, he went into the hallway and told a




                                            7
neighbor to call the police. He was afraid other people might be coming but did not see

anyone. He began driving out of the parking lot but was stopped by police.

      {¶21} The jury found Thomas guilty of Counts Two, Five, Seven, and Eight, and

the lesser included offense of Negligent Homicide on Count Four, as well as the

accompanying firearm specifications. The jury found him not guilty on Counts One and

Four as charged in the indictment. The verdict was memorialized in an October 12,

2017 Order and Journal Entry.

      {¶22} A sentencing hearing was held on November 27, 2017, and the sentence

was memorialized in a November 29, 2017 Order and Journal Entry.             The court

sentenced Thomas to serve consecutive terms of 15 years to life for each count of

Murder (Counts Two and Five) and three-year terms on the two accompanying firearm

specifications, to be served consecutively with each other and with the Murder

sentences. He was sentenced to terms of four years for each offense of Felonious

Assault (Counts Seven and Eight) to be served concurrently with each other and the

other sentences. The firearm specifications for those counts were ordered to be served

consecutively with each other but concurrent to the aforementioned sentences. Finally,

he was ordered to serve a concurrent term of 180 days in jail for the lesser included

offense of Negligent Homicide. Thomas was also notified that he would be supervised

under three years of mandatory postrelease control.

      {¶23} Thomas timely appeals and raises the following assignments of error:

      {¶24} “[1.] The trial court committed reversible error in refusing to allow into

evidence text messages from an absent witness’s cell phone.

      {¶25} “[2.] The trial court committed reversible and plain error by not giving a




                                          8
self-defense jury instruction under the castle doctrine, R.C. 2901.09.

         {¶26} “[3.] Appellant was denied his constitutionally guaranteed right to effective

assistance of counsel when his trial counsel failed to object to the trial court’s instruction

on self-defense and [did] not request a jury instruction under the castle doctrine, R.C.

2901.09.

         {¶27} “[4.] Defendant’s two convictions for felonious assault are based upon

insufficient evidence and are against the manifest weight of the evidence.

         {¶28} “[5.] The trial court committed reversible and plain error when it failed to

merge Defendant’s conviction[s] for murder and negligent homicide for sentencing

purposes, as they were allied offenses of similar import.

         {¶29} “[6.] The trial court committed reversible and plain error when it failed to

merge Defendant's two conviction[s] for felonious assault for sentencing purposes, as

they were allied offenses of similar import.

         {¶30} “[7.] The trial court committed reversible and plain error by sentencing the

defendant to consecutive sentences in violation of R.C. 2929.14(C) and in violation of

his rights to due process.

         {¶31} “[8.] The trial court committed reversible and plain error when it sentenced

the defendant without properly giving him all the notifications concerning post-release

control.

         {¶32} “[9.] The cumulative effect of the trial court’s errors denied defendant a

fair trial.”

         {¶33} For the purpose of clarity, the assignments of error will be considered out

of order.      In his second assignment of error, Thomas argues that the trial court




                                               9
committed plain error by not giving a “castle doctrine” instruction in addition to the other

self-defense instructions. In his third assignment of error, he argues, alternatively, that

trial counsel was ineffective by failing to request such an instruction, resulting in

prejudice.

       {¶34} Thomas concedes that the standard of review for the failure to give the

instruction is plain error since trial counsel failed to object. “If there was no formal

objection and the record does not reveal a material dispute over the jury instructions,

appellate review must be limited to plain error under Crim.R. 52(B).” State v. Kiehl,

2016-Ohio-8543, 78 N.E.3d 1226, ¶ 25 (11th Dist.). Pursuant to Crim.R. 52(B) “[p]lain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” To show plain error, a defendant must

demonstrate that “(1) there was an error, (2) the error was ‘plain,’ i.e., obvious, and (3)

the error affected substantial rights.” State v. Tench, ___ Ohio St.3d ___, 2018-Ohio-

5205, ___ N.E.3d ___ ¶ 217. “Plain error exists when it can be said that but for the

error, the outcome of the trial would clearly have been otherwise.” State v. Issa, 93

Ohio St.3d 49, 56, 752 N.E.2d 904 (2001).

       {¶35} As to his claim of ineffective assistance of counsel, Thomas is required to

demonstrate “(1) that counsel’s performance fell below an objective standard of

reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant

resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v.

Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To show

that a defendant has been prejudiced by counsel’s deficient performance, the defendant




                                            10
must prove that there exists a reasonable probability that, were it not for counsel’s

errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.

        {¶36} Self-defense is an affirmative defense which permits the defendant “to use

that force which is reasonably necessary to repel the attack.” State v. Williford, 49 Ohio

St.3d 247, 249, 551 N.E.2d 1279 (1990). The courts of this state have held that “where

the state is required to prove beyond a reasonable doubt every element of a crime as

defined by statute, the defendant may fairly be required to prove, by a preponderance of

the evidence, the affirmative defense of self-defense.” State v. Jackson, 22 Ohio St.3d

281, 283, 490 N.E.2d 893 (1986). To establish self-defense, a defendant must satisfy

three elements: “(1) that the defendant was not at fault in creating the situation giving

rise to the affray; (2) that the defendant had a bona fide belief that he was in imminent

danger of death or great bodily harm and that his only means of escape from such

danger was in the use of such force; and (3) that the defendant did not violate any duty

to retreat or avoid the danger.” State v. Kovacic, 2012-Ohio-219, 969 N.E.2d 322, ¶ 22

(11th Dist.), citing State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).1

        {¶37} “As a general proposition, a trial court is obligated to give a

requested jury instruction when (1) it provides a correct statement of the pertinent law;



1. We note, for the purpose of clarity, that there has been a statutory amendment to the law regarding
self-defense subsequent to Thomas’ convictions, although it does not apply retroactively. Pursuant to
R.C. 2901.05(A), the requirement for a defendant to prove an affirmative defense by the preponderance
of the evidence no longer applies to “self-defense, defense of another, or defense of the accused’s
residence as described in division (B)(1) of this section.” Division (B)(1) as amended adds the following:
“A person is allowed to act in self-defense, defense of another, or defense of that person’s residence. If,
at the trial of a person who is accused of an offense that involved the person’s use of force against
another, there is evidence presented that tends to support that the accused person used the force in self-
defense, defense of another, or defense of that person’s residence, the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force in self-defense, defense of another, or
defense of that person’s residence, as the case may be.”


                                                   11
(2) it is relevant to the facts of the case; and (3) it is not otherwise included in the

general charge to the jury.” State v. Thornton, 11th Dist. Portage No. 2014-P-0054,

2015-Ohio-5209, ¶ 22.

       {¶38} Here, the trial court gave the jury several instructions relating to self-

defense, including the three elements of self-defense and that Thomas had a duty to

retreat if he was at fault or did not have reasonable grounds to believe that he was in

danger. The jury was also instructed that Thomas “is presumed to have acted in self-

defense when using defensive force that was intended to cause death or great bodily

harm to another if the person against whom the defensive force was used had entered,

unlawfully and without privilege to do so, the residence occupied by the Defendant,” as

set forth in former R.C. 2901.05(B)(1). (Emphasis added.) The court did not instruct

the jury that “a person who lawfully is in that person’s residence has no duty to retreat

before using force in self-defense,” as is set forth in R.C. 2901.09(B), also known as the

“castle doctrine.”

       {¶39} The castle doctrine arises from the maxim that a man’s home is “his

castle” and “has long been a cherished part of American law * * *.” State v. Comer, 4th

Dist. Gallia No. 10CA15, 2012-Ohio-2261, ¶ 11. This is a long-standing principle that

has been applied by Ohio courts and is codified in R.C. 2901.09(B). State v. Peacock,

40 Ohio St. 333, 334 (1883) (“[w]here one is assaulted in his home, or the home itself is

attacked, he may use such means as are necessary to repel the assailant from the

house * * * even to the taking of life”).

       {¶40} As noted above, the court did give an instruction that there is a

presumption of self-defense when a person enters a residence unlawfully, pursuant to




                                            12
former R.C. 2901.05(B)(1), although said instruction does not discuss a duty to retreat.

This is not a substitute for a castle doctrine (or a no duty to retreat) instruction, which

was more properly applicable in this circumstance. There was no assertion that Brack

entered the apartment unlawfully, as he came with his girlfriend, Dixon, an invited guest.

See State v. Dale, 2d Dist. Montgomery No. 2012 CA 20, 2013-Ohio-2229, ¶ 18

(distinguishing between the proper instructions for victims who have lawfully or

unlawfully entered the residence).    Further, there is no question that the residence

requirement was met. A residence for the purposes of the castle doctrine is described

as “a dwelling in which a person resides either temporarily or permanently or is visiting

as a guest.”     R.C. 2901.05(D)(3); R.C. 2901.09(A) (“[a]s used in this section,

‘residence’” has the same meaning “as in section 2901.05 of the Revised Code”).

Thomas was an invited guest of Ochsenbine’s at the time of the party and often lived in

her apartment for days at a time. Thus, a castle doctrine instruction should have been

given under these circumstances.

      {¶41} The State does not refute the foregoing but, rather, argues that Thomas

failed to demonstrate he was not at fault in creating the situation and did not prove he

acted in self-defense. Thus, giving a no duty to retreat instruction would not have

changed the outcome of the trial.

      {¶42} The State’s premise that Thomas failed to prove he was not at fault is

based upon it weighing the evidence in a manner favorable to that outcome, specifically

emphasizing the testimony from Daniels that he heard Thomas chamber a round prior

to Brack pulling out his firearm and Rachel’s testimony that she saw Thomas with his

gun out first although Brack had made no threats or aggressive movements. This leads




                                           13
to the State’s conclusory statement that “[t]he evidence at trial established Appellant

was the first to stand and aim his gun” and that he “was the first aggressor.”

       {¶43} These arguments are based on selective conclusions rather than a full

picture of the evidence presented to the jury. While there was testimony from some of

the witnesses that Thomas had his gun out first, there was also testimony that it was

hidden from view of others and that no one in the room noticed it, supporting a

conclusion that merely having the weapon out did not place Thomas at fault for causing

the shooting. Multiple witnesses also testified that Brack and Dixon’s behavior implied

they were coming to the apartment seeking a conflict.           Perhaps most importantly,

Daniels, Ochsenbine, and Thomas testified that Brack pointed his weapon at Thomas

first, with Thomas testifying Brack was the first to shoot.       Further, Gundlach, while

testifying at trial that she was not sure who shot first, had initially told police that Brack

stood up and shot at Thomas first. Here, there were issues of credibility that are for the

trier of fact to decide and “an appellate court may not substitute its own judgment.”

State v. Starkey, 11th Dist. Ashtabula No. 2017-A-0022, 2017-Ohio-9327, ¶ 52,

citing State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). Further, whether

the elements of self-defense are met when there are factual disputes is also an issue for

the trier of fact. Dale, 2013-Ohio-2229, at ¶ 29.

       {¶44} Several courts have addressed similar situations and found that the failure

for the jury to be given a castle doctrine instruction was reversible error, under a plain

error standard or due to ineffective assistance of counsel. In State v. Lewis, 2012-Ohio-

3684, 976 N.E.2d 258 (8th Dist.), the appellate court held that, where the defendant was

a resident of the home where the murder occurred but no castle doctrine instruction was




                                             14
given, this constituted plain error and he “did not receive a fair trial because the jury did

not deliberate with a complete set of instructions.” Id. at ¶ 20-23. In Dale, where the

defendant and the victim gave two separate versions of events leading to a shooting

which occurred at the defendant’s residence, the court rejected a plain error argument

but held that the jury could have found that the elements of self-defense were met, and,

thus, defense counsel was ineffective by failing to request a castle doctrine instruction.

Id. at ¶ 29. See also Parma v. Treanor, 2018-Ohio-3166, 117 N.E.3d 970, ¶ 26-32 (8th

Dist.) (when there was “sufficient evidence of such nature and quality to warrant an

instruction on self-defense” and the castle doctrine instruction was not given, reversal of

the defendant’s convictions was required).

       {¶45} As such, there was evidence presented to the jury both supporting and

contradicting Thomas’ claim of self-defense. The jury certainly could have found by a

preponderance of the evidence, the standard applicable at that time, that Thomas was

not at fault for the incident that gave rise to his self-defense claim. It is highly possible

under these facts that, since the jury was not instructed as to the castle doctrine, it may

have found Thomas guilty because “it might have believed that appellee was under a

duty to retreat from his home.” Williford, 49 Ohio St.3d at 250, 551 N.E.2d 1279.

       {¶46} While we recognize that under the plain error standard our review is

limited to instances where the outcome of the trial clearly would have been otherwise,

the standard for ineffective assistance requires us only to determine whether there was

a reasonable probability of a different result had the castle doctrine instruction been

given. We find this to be the case based on the circumstances described above. Given

the conflicting versions of events, “[a]n instruction on the castle doctrine could have




                                             15
established a critical element of [the defendant’s] self-defense claim, and there was no

strategic basis to omit such an instruction.” Dale at ¶ 27. Counsel was ineffective by

failing to request such an instruction since there is a reasonable probability that the

outcome would have been different if the proper jury instruction had been given.

       {¶47} For these reasons, and since all of the charges for which Thomas was

convicted hinged upon the issue of self-defense, we reverse Thomas’ convictions on all

six counts and remand this matter to the trial court for a new trial.

       {¶48} The third assignment of error is with merit. Thus, the second assignment

of error is moot.

       {¶49} In his first assignment of error, Thomas argues that the trial court erred by

not permitting him to introduce as evidence text messages from Dixon’s phone in the

absence of her testimony. He contends that since the phone in question was located

outside of an apartment near where the shooting took place, the court issued a warrant

to extract data from Dixon’s phone, and the information technology director did extract

evidence and was called as a witness, the content of the messages should have been

admitted. The State contends that since Thomas failed to demonstrate that the cell

phone actually belonged to Dixon, the trial court properly excluded the extraction report.

       {¶50} We acknowledge that this assignment is rendered moot by the

determination to reverse and remand for a new trial due to the improper jury instruction.

However, for the sake of judicial economy and to prevent possible error at a subsequent

trial, we will briefly address this assignment for the purposes of explaining the proper

authentication of cell phone records.

       {¶51} It must be emphasized that there is a “low threshold standard” for proving




                                             16
the authenticity of evidence. There is no requirement to present “conclusive proof of

authenticity, but only sufficient foundational evidence for the trier of fact to conclude that

the document is what its proponent claims it to be.” (Citation omitted.) State v. Guyton,

2016-Ohio-8110, 74 N.E.3d 939, ¶ 25 (11th Dist.). “The requirement of authentication

or identification 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.”

Evid.R. 901(A). In other words, the party seeking admission of the evidence need only

demonstrate there is a “reasonable likelihood that the evidence is authentic.” (Citation

omitted.) State v. Bickerstaff, 11th Dist. Ashtabula No. 2014-A-0054, 2015-Ohio-4014,

¶ 18. “Any question about the reasonableness of the inferences” to be drawn from cell

phone record evidence is “an issue of weight rather than admissibility.” State v. Irvine,

9th Dist. Summit No. 28998, 2019-Ohio-959, ¶ 31.

       {¶52} The trial court determined that there was not sufficient evidence of

authentication of the records since there was no direct testimony from a witness who

knew the phone belonged to Dixon or cell phone records to establish the number tied to

the phone was utilized by her. Given the low threshold for admissibility, we emphasize

that there are a multitude of ways in which the cell phone text messages could be

authenticated such that they would be admissible.

       {¶53} While in many cases text messages are authenticated by the testimony of

the recipient, Bickerstaff at ¶ 17, this is by no means the only method of authentication.

For example, if police officers can provide circumstantial evidence demonstrating a

belief that the phone belonged to a certain party, such as identifying it by a unique

ringtone and hearing the owner speak to a woman on the phone who was named in the




                                             17
cell phone data extraction reports, this can be sufficient to establish ownership of the

phone for the purpose of authenticating cell phone text message records. State v.

Norris, 2016-Ohio-5729, 76 N.E.3d 405, ¶ 39-43 (2d Dist.). In relation to the content of

the text messages, which the trial court here did not consider, we note it has been held

that the content of a conversation can be used to authenticate the speaker in a phone

call when a defendant’s voice could not otherwise be identified, since the content

provided “sufficient foundational evidence” to demonstrate the defendant was the one

speaking. See State v. Carr-Poindexter, 2d Dist. Montgomery No. Civ.A. 20197, 2005-

Ohio-1571, ¶ 25.      Additionally, testimony and records that establish subscriber

information, either through a representative of a cell phone company or an individual

with experience reviewing said records, provide another valid method of authentication.

State v. Blake, 2012-Ohio-3124, 974 N.E.2d 730, ¶ 30 (12th Dist.); Irvine at ¶ 30. Such

methods, by demonstrating a link to Dixon’s ownership and/or use of the cell phone,

would be sufficient for the purposes of authentication.

      {¶54} Furthermore, it appears that the text messages in question could aid the

defense in establishing the circumstances under which Brack entered the party, adding

potential support to the conclusion that he was the aggressor. Contrary to the State’s

argument, then, such messages would be relevant.

      {¶55} While we need not rule on whether the lower court erred in excluding the

text message records for the purposes of this appeal, nothing in this court’s ruling

precludes the defendant from seeking to have the records properly admitted in a

subsequent trial.

      {¶56} Having made the foregoing clarifications, we find the first assignment of




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error moot.

      {¶57} Given that the convictions must be reversed and a new trial held, the

remaining assignments of error, which relate to the weight of the evidence as to the

Felonious Assault convictions and alleged errors in sentencing are rendered moot.

Thus, we decline to address the fourth through ninth assignments of error.

      {¶58} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is reversed and remanded for further proceedings consistent with this

opinion. Costs to be taxed against the appellee.


THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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