[Cite as State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208.]




              THE STATE OF OHIO, APPELLEE, v. HOOD, APPELLANT.
          [Cite as State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208.]
Reconsideration—Evidence—Criminal law—Confrontation Clause—Admission of
        cell-phone records—Cell-phone records, if properly authenticated, are
        business records and are not testimonial under Crawford v. Washington—
        Lack of authentication of records, not their hearsay nature, makes
        admission of records unconstitutional under Confrontation Clause—
        Authentication may be provided only by custodian or other witness who is
        qualified to testify that records were kept in ordinary course of regularly
        conducted business—Error in admission of evidence harmless when other
        evidence of guilt is overwhelming.
(No. 2010-2260—Submitted December 27, 2012—Decided December 31, 2012.)
                          ON MOTION FOR RECONSIDERATION.
                                 __________________
        PFEIFER, J.
                                     Reconsideration
        {¶ 1} This matter is before us upon a motion for reconsideration filed by
appellee, the state of Ohio.          S.Ct.Prac.R. 11.2(A)(4) allows a motion for
reconsideration of a decision on the merits of a case. “We have invoked the
reconsideration procedures set forth in S.Ct.Prac.R. XI to correct decisions which,
upon reflection, are deemed to have been made in error.” State ex rel. Huebner v.
W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995).
See also Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539,
541, 697 N.E.2d 181 (1998).
        {¶ 2} The state does not ask this court to reconsider the judgment in this
case, but instead requests that we modify certain portions of the opinion that were
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not outcome-determinative. For the most part, the state’s concerns center around
the statement in the original opinion, “A hearsay violation itself violates the
Confrontation Clause, and thus requires a heightened harmless-error analysis.”
State v. Hood, 134 Ohio St.3d 595, 2012-Ohio-5559, 984 N.E.2d 929, ¶ 40. We
agree that that statement and supporting language was overbroad and was made in
error. Upon reconsideration, we modify the opinion to clarify that it is not the
hearsay nature of the cell-phone records at issue that made their admission
constitutional error.   Instead, it was their lack of authentication as business
records that made their admission unconstitutional under the Confrontation
Clause, because without that authentication, the records cannot be considered
nontestimonial. We do not agree with the state that the trial court’s error in
admitting the unauthenticated records was not constitutional error.
       {¶ 3} Accordingly, we vacate our decision in State v. Hood, 134 Ohio
St.3d 595, 2012-Ohio-5559, 984 N.E.2d 929, and replace it with the opinion
issued today on reconsideration.
                                   Merit Opinion
       {¶ 4} The issue we address in this case is whether, in general, cell-phone
records produced by a cell-phone company constitute testimonial evidence that
implicates a defendant’s right to cross-examine a witness under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. We find that
ordinarily such records, if properly authenticated, are business records and are not
testimonial. However, in this case, the cell-phone records were not properly
authenticated at trial, and their admission violated the defendant’s rights under the
Confrontation Clause. We hold that the admission of the cell-phone records was
error, but that that error was harmless beyond a reasonable doubt.
                        Factual and Procedural Background
       {¶ 5} In the early morning hours of January 26, 2009, defendant-
appellant, James Hood, allegedly was one of four men who burst into a Cleveland




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home and robbed at gunpoint nearly a dozen people who had gathered to celebrate
the birthdays of friends and family. A co-conspirator, Samuel Peet, was shot dead
during the course of the robbery. Hood was arrested and charged with murder
and multiple counts of aggravated burglary, aggravated robbery, and kidnapping.
As part of the proof to establish Hood’s involvement in the crimes, the state
introduced cell-phone records that it argued showed his communication with the
other co-conspirators and his whereabouts during the early morning in question.
The issue we address is whether the introduction of that evidence violated the
Confrontation Clause of the Sixth Amendment to the United States Constitution.
                                   The Crime
       {¶ 6} In the late evening of January 25, 2009, a group of friends gathered
in the basement of Sharon Jackson’s home on Parkview Avenue in Cleveland to
play cards and celebrate the birthdays of Denotra Jones and her son, Rodney.
Among the guests that evening was one of the alleged co-conspirators, Terrence
Davis, also known as “TD.” According to Rodney Jones, Davis’s presence was
unusual: Davis had not joined the group in over a year, and he left the party
several times throughout the evening. TD had met earlier that day with Samuel
Peet and the other co-conspirators—Hood and Kareem Hill—and told them about
the party.
       {¶ 7} Jerrell Jackson, homeowner Sharon Jackson’s son, was the first
person to be confronted by the assailants. He had walked some guests to their
cars at around 5:00 a.m.; when he went back inside, there were four men in the
hallway wearing masks and carrying guns. Jerrell noticed that one gun was an
Uzi. Jerrell ran down into the basement, yelling a warning to everyone. Sharon
Jackson, who had fallen asleep on a couch in her basement, was awakened by the
commotion; she saw Jerrell being followed into the basement by four men
wearing masks and carrying guns.       She described the guns as two 9 mm
handguns, one Uzi, and one handgun with a long chrome barrel. The robbers




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made the victims strip, then searched the clothing and took money and cell
phones.
       {¶ 8} Nine of the eleven victims testified at trial. They described the
same basic facts—men in dark clothing, wielding guns, stormed into the
basement, ordered some of the victims to remove their clothes, and stole money
and cell phones from them at gunpoint. Some witnesses differed on the number
of assailants, from two to four, but the victims were robbed in two separate rooms
of the basement.     At some point, gunshots were heard.          One of the co-
conspirators, Peet, was later found dead nearby, in a yard several houses away.
Several of the victims were able to identify him as one of the assailants due to his
distinctive coat. He had been shot twice from close proximity; on his body were
two cell phones belonging to victims and $345 in cash.
       {¶ 9} Earlier that morning, around 4:00 a.m., police received a report of
a male pointing a gun at another male in the area of East 104th Street and Sophia
Avenue, near where Hood lived. En route to the scene, the officers observed a
green Jeep Cherokee stopped in the middle of Parkview Avenue with its lights on.
As the officers approached, the Jeep sped away. The officers pursued the Jeep
and were able to get a partial plate number, “EOF,” before losing sight of the
vehicle. The same officers were called to help investigate the Parkview Avenue
break-in and were told that a sport utility vehicle was involved in the crime.
Shortly after the break-in, a green Cherokee, license plate number EOF 7079, was
spotted at a local McDonald’s. Cash, a mask, and two victims’ cell phones were
found inside. Hood, his co-defendant Kareem Hill, and William Sparks had been
removed from the vehicle and arrested. At the time of his arrest, Hood had
$411.25 in cash in his possession. Hill eventually testified against Hood.
                            Kareem Hill’s Testimony
       {¶ 10} Hill initially lied to police and denied any involvement in the
crimes. But when a latex glove found at the scene tested positive for Hill’s DNA,




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Hill pleaded guilty to reduced charges and agreed to testify truthfully against
Hood.
        {¶ 11} Hill knew his co-conspirators Hood, Davis, and Peet from the
neighborhood where he grew up. Hill was 18 at the time of the crimes; Hood was
older—he was 29 at the time of the trial, according to his attorney. In the hours
before the robbery, Hill and Hood met Davis and Peet at a bar.             The four
discussed robbing a card game on Parkview Avenue. Davis left the bar to go to
the party. Davis eventually returned to the bar and laid out the specifics about the
party situation.
        {¶ 12} They all left the bar—Davis and Peet in one car, and Hill and Hood
in Hill’s green Jeep Cherokee. Hood and Hill went to Hood’s house on Sophia
Avenue to pick up guns. Hood went into his house and returned to the vehicle
with a semiautomatic pistol, an Uzi, and latex gloves. Hill and Hood then drove
to Parkview Avenue, where they saw Peet standing in a driveway near the target
house; they let Peet get into the back seat of the Jeep. Peet had a gun.
        {¶ 13} The three waited in the car. When Davis approached and informed
them that the back door of the target house was open, Hood and Peet left the
vehicle while Hill parked on the next street. Hill then cut through back yards to
meet the others. All had weapons and wore hats or masks; Hill, Hood, and Davis
wore latex gloves.    Hill carried a black handgun, Peet carried a long silver
revolver, Davis carried a black pistol, and Hood carried an Uzi.
        {¶ 14} Hill testified that he and his cohorts took money and cell phones
from the victims. At one point, there was an argument between Hood and Peet—
Hood had accused Peet of stealing money from the pile of cash that was to be
divided. Davis broke up the altercation by announcing that it was time to leave.
        {¶ 15} Hill ran up the stairs and outside; he was outside when he heard
gunshots from inside the house. He never saw Peet leave the house. Hill and
Hood left in Hill’s Jeep while Davis went off in another direction.




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       {¶ 16} Hill and Hood returned to Hood’s house on Sophia to drop off the
guns. Hood went inside. Hood returned to the Jeep, and the two picked up Hill’s
friend, William Sparks, who Hill says had called him for a ride to McDonald’s.
Hill let Sparks drive. They went to McDonald’s, where police stopped and
arrested the three. The state ultimately did not pursue charges against Sparks.
                        Cellular-Phone-Record Testimony
       {¶ 17} At trial, the prosecution introduced cell-phone records for Hood,
Hill, and Davis that detectives claimed to have subpoenaed from cellular-phone
companies. Detective Carlin described the subpoena process:


               We have to go to a county prosecutor. We can’t just go and
       say we want these records. The phone companies have rules on
       that. They just don’t give them out.
               We obtain an authorization for a subpoena and then we
       respond to—there is a subpoena person in the prosecutor’s office
       * * *. We provide them with the numbers, they then type up the
       subpoenas, and based on their records and their relationship with
       the phone companies, they know, with the prefix numbers, what
       company that subpoena needs to go to and they direct the subpoena
       to that company.


       {¶ 18} Carlin testified that the cell-phone records were obtained through
that process; however, the subpoenas are not in the record.
       {¶ 19} The records purport to show cell-phone activity by Hood, Hill, and
Davis on the night and early morning in question. During Hill’s testimony, the
prosecution used the records to ask Hill about certain calls that were placed by his
phone or received by his phone. Those calls included ones made by Hill’s cell
phone to Davis’s cell phone and vice versa, some right around the time of the




                                         6
                                   January Term, 2012




crimes. Indeed, Detective Carlin testified that Davis first became a suspect in the
robberies when the phone records were reviewed. There was also a call from one
of the stolen cell phones to Hill’s phone; Hill claimed that Hood had called Hill’s
number to see whether the stolen phone worked. The records showed Hill trying
to contact Davis several times just before and after the robberies; Hill testified
that Hood borrowed his phone to make those calls.
          {¶ 20} When the prosecution first attempted to use cell-phone records in
its direct examination of Hill, the defense objected, claiming that the records
lacked verification or certification of their authenticity. The prosecution argued
that the records fell under the business-records exception to the hearsay rule and
that Hill could verify the records based on his own knowledge.          The court
determined that the prosecution could use the records to have Hill testify as long
as another witness would authenticate the records. The prosecutor stated that
Detective Carlin, who subpoenaed the records, would testify as to how she
obtained them. The defense argued that Detective Carlin could not authenticate
business records of another entity and entered a continuing objection on the
record.
          {¶ 21} On cross-examination, the defense used the phone records to poke
holes in Hill’s version of events. For instance, phone records showed that Hill’s
cell phone was calling Hood’s cell phone at 2:42 a.m. Hill could not explain why
he would have called Hood at a time when, according to Hill, the two men were a
few feet apart, in the same car.
          {¶ 22} After the cross-examination, Hood renewed his objection to the
cell-phone records after the state related that it would use Detective Carlin’s
partner, Detective Henry Veverka, to verify the records. The trial court remarked
at that time: “I’ve done the case law research on it and my gut reaction is to
subpoena Verizon on that basis. I guess Veverka would just have to come in and




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say that he issued it, how he’s familiar with the business records of the company.
That would be the testimony that would be proper.”
       {¶ 23} Detective Veverka testified that the records were obtained through
subpoena. He also testified about his experience interpreting cell-phone records,
which he learned mostly on-the-job through other detectives, including experience
in using information from providers to determine geographic locations of the cell
phone at the time calls were made, based upon cell-tower data. Veverka testified
that Hood did not have his cell phone with him at the time of his arrest. He
reviewed call logs for the days at issue, as well as cellular-tower records. He
testified as to State’s Exhibit 187, which contained tower records for Hood’s cell
phone. Those records indicated which cell tower Hood was near when he used
his phone.
       {¶ 24} Through the records, Veverka was able to ascertain that between
10:00 p.m. through 3:00 a.m., 15 calls were made or received on Hood’s phone.
The last of those 15 calls was at approximately 2:42 a.m.; the next call was at 6:24
a.m. He was able to determine through tower records that Hood was in the
vicinity of the robbery when he used his cell phone. Through another record
containing a log of calls to and from Hood’s cell phone, Veverka was able to
determine the dates and duration of the calls and the phone numbers involved.
       {¶ 25} From his examination of the cell-phone records, Veverka
concluded that Hood, Hill, and Davis were all in the vicinity of the targeted house
at the time the robberies were committed.
       {¶ 26} Defense counsel cross-examined Veverka.           He admitted that
although he knew more about interpreting cell-phone records than his fellow
detectives, he did not have any expertise in cell phones or towers. He admitted
being unaware that different towers have different powers, and admitted that
phone company experts could provide maps and charts showing which towers
serve which areas.




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                                 January Term, 2012




       {¶ 27} The records Veverka testified about were admitted into evidence.
The documents sent to the jury contained some alterations made by the
detective—he wrote the phone numbers of the suspects on the documents and
color-coded the records to highlight phone calls involving the different
participants in the robbery. Hood’s counsel objected, stating that the records had
not been verified as a business record, had not been identified by any phone
company, and contained the detective’s personal notes, and that the alleged
subpoenas were not in the record. The trial judge overruled the objection.
                                 Verdict and Appeal
       {¶ 28} The jury convicted Hood on one count of murder pursuant to R.C.
2903.02(B), “caus[ing] the death of another as a proximate result of the offender’s
committing or attempting to commit an offense of violence that is a felony of the
first or second degree,” and acquitted him on one count of murder as defined in
R.C. 2903.02(A), “purposely caus[ing] the death of another.” Further, the jury
convicted Hood of nine counts of kidnapping, nine counts of aggravated robbery,
and one count of aggravated burglary, as well as two firearm specifications for
each count, which were merged for purposes of sentencing into a single
specification. The trial court had granted Hood’s motion for acquittal on two
counts of kidnapping and two counts of aggravated robbery when two of the
victims failed to testify. The court ultimately sentenced Hood to an aggregate
term of 21 years to life in prison.
       {¶ 29} Hood appealed his convictions to the Eighth District Court of
Appeals; among other things, he argued that the trial court had erred “by allowing
cell phone records to be admitted into evidence without being properly
authenticated in violation of the Confrontation Clause.” The appellate court held
that “[a]ssuming arguendo that these records were inadmissible and violative of
appellant’s right to confront the witnesses against him, any error on the part of the
trial court in this regard was harmless.” State v. Hood, 8th Dist. No. 93854, 2010-




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Ohio-5477, ¶ 27.        The appellate court applied the harmless-error standard
applicable to constitutional error:


          Before constitutional error can be considered harmless, we must be
          able to “declare a belief that it was harmless beyond a reasonable
          doubt.” Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct.
          824, 17 L.Ed.2d 705. Where there is no reasonable possibility that
          the unlawful testimony contributed to a conviction, the error is
          harmless and therefore will not be grounds for reversal. State v.
          Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623, paragraph three
          of the syllabus, vacated on other grounds in (1978), 438 U.S. 910,
          98 S.Ct. 3135, 57 L.Ed.2d 1154.


Id.
          {¶ 30} The appellate court determined that the admission of the cell-
phone records did not contribute to Hood’s conviction and affirmed the judgment
of the trial court.
          {¶ 31} Hood sought jurisdiction in this court on the following proposition
of law:


                 Cell phone records are not admissible as business records
          without proper authentication. The admission of unauthenticated
          cell phone records under the business records exception violates
          the Confrontation Clause of the Sixth Amendment to the United
          States Constitution.


          {¶ 32} The matter is before this court upon the acceptance of a
discretionary appeal. 128 Ohio St.3d 1411, 2011-Ohio-828, 942 N.E.2d 384.




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                                January Term, 2012




                                 Law and Analysis
                               Confrontation Clause
          {¶ 33} The Sixth Amendment to the United States Constitution, in its
Confrontation Clause, preserves the right of a criminal defendant “to be
confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S.
36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court of the
United States stated that the Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.”
The key issue is what constitutes a testimonial statement: “It is the testimonial
character of the statement that separates it from other hearsay that, while subject
to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266,
165 L.Ed.2d 224 (2006).
          {¶ 34} In Crawford, the court suggested that business records are “by
their nature” nontestimonial. Id. at 56. In State v. Craig, 110 Ohio St.3d 306,
2006-Ohio-4571, 853 N.E.2d 621, this court stated that business records “are not
‘testimonial in nature because they are prepared in the ordinary course of
regularly conducted business and are “by their nature” not prepared for
litigation.’ ” Id. at ¶ 82, quoting People v. Durio, 7 Misc.3d 729, 734, 794
N.Y.S.2d 863 (2005). Whether a business record meets a hearsay exception is
immaterial in regard to the Confrontation Clause; it is the nontestimonial
character of the record that removes it from the purview of the Confrontation
Clause:


          Business and public records are generally admissible absent
          confrontation not because they qualify under an exception to the
          hearsay rules, but because—having been created for the




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       administration of an entity’s affairs and not for the purpose of
       establishing or proving some fact at trial—they are not testimonial.


Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527, 174 L.Ed.2d
314 (2009).
       {¶ 35} A Confrontation Clause issue can arise “if the regularly conducted
business activity is the production of evidence for use at trial.” Id. at 321. In
Melendez-Diaz, for instance, the items of evidence at issue were reports by a
company that provided forensic analysis on seized substances to establish whether
they were illegal.
       {¶ 36} But the regularly conducted business activity of cell-phone
companies is not the production of evidence for use at trial. The fact that records
are used in a trial does not mean that the information contained in them was
produced for that purpose. Even when cell-phone companies, in response to a
subpoena, prepare types of records that are not normally prepared for their
customers, those records still contain information that cell-phone companies keep
in the ordinary course of their business. In United States v. Yeley-Davis, 632 F.3d
673, 679 (10th Cir.2011), the defendant argued that the documents produced by
the cellular-phone company were not merely phone records but were instead
exhibits prepared especially for trial to prove the commission of a crime. The
information contained in the exhibits was similar to that contained in the exhibits
at issue in this case: “The phone records provide information about each call
made or received by Ms. Yeley-Davis’s number, including the number making
the call, the number receiving the call, and the date and duration of the call.” Id.
at 677. The court rejected the defendant’s argument:


               Ms. Yeley-Davis contends that the phone records and
       authenticating documents in Exhibit 5 are testimonial because they




                                        12
                                January Term, 2012




        were prepared solely for use at trial to prove the conspiracy. * * *
        Specifically, she argues that the records were not telephone bills,
        but rather “exhibits prepared especially and only for trial.” * * *
        Ms. Yeley-Davis is correct that the phone records in Exhibit 5 are
        not telephone bills.   This does not mean, however, that these
        records were created simply for litigation—they were not. Rather,
        these records were kept for Verizon’s business purposes.


Id. at 679.
        {¶ 37} Likewise, in United States v. Green, 396 Fed.Appx. 573, 575 (11th
Cir.2010), the court held that subpoenaed records from the defendant’s cell-phone
carrier were not testimonial: “[The defendant’s] cell phone records and cell tower
location information qualified as business records under Fed.R.Evid. 803(6)
which, by their nature, are non-testimonial for purposes of the Sixth
Amendment.” The court noted that “documents which are routinely recorded for
a purpose other than preparation for a criminal trial are non-testimonial for
purposes of the Sixth Amendment.” Id. at 574-575.
        {¶ 38} Unlike the laboratory reports that the court found to be testimonial
in Melendez-Diaz or Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705,
180 L.Ed.2d 610 (2011), the culling and configuration of cell-phone records does
not require the undertaking of a scientific process or an interpretation of results
from experimentation. It reflects only a formatting of information that already
exists as a part of the company’s day-to-day business.
                       Authentication of Business Records
        {¶ 39} Because cell-phone records are generally business records that are
not prepared for litigation and are thus not testimonial, the Confrontation Clause
does not affect their admissibility. But in this case, there is no assurance that the




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records at issue are business records. Evid.R. 803(6) governs the admission of
business records:


       “To qualify for admission under Rule 803(6), a business record
       must manifest four essential elements: (i) the record must be one
       regularly recorded in a regularly conducted activity; (ii) it must
       have been entered by a person with knowledge of the act, event or
       condition; (iii) it must have been recorded at or near the time of the
       transaction; and (iv) a foundation must be laid by the ‘custodian’
       of the record or by some ‘other qualified witness.’ ”


State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171, quoting
Weissenberger, Ohio Evidence Treatise, Section 803.73, 600 (2007).
       {¶ 40} Here, there was simply no foundation laid by a custodian of the
record or by any other qualified witness. Detective Veverka was not a custodian
of the records. He did not prepare or keep the phone records as part of a regularly
conducted business activity. Nor was he an “other qualified witness” under the
rule. A “qualified witness” for this purpose would be someone with “enough
familiarity with the record-keeping system of the business in question to explain
how the record came into existence in the ordinary course of business.” 5
McLaughlin, Weinstein’s Federal Evidence, Section 803.08[8][a] (2d Ed.2009);
United States v. Lauersen, 348 F.3d 329, 342 (2d Cir.2003). Tellingly, in the
midst of discussions regarding the lack of authentication of the records, the trial
judge remarked, “My gut reaction is to subpoena Verizon.” That did not happen.
       {¶ 41} In Yeley-Davis, both the certification authenticating Yeley-Davis’s
phone records and the affidavit authenticating the phone records of her two
alleged co-conspirators stated that the records were kept in the course of
Verizon’s regularly conducted business. 632 F.3d at 677. In this case, there is no




                                        14
                                January Term, 2012




such authentication. The records in this case lacked a certification or affidavit
authenticating them, and no “custodian or other qualified witness” testified that
the phone records were business records.
         {¶ 42} Thus, the cell-phone records in this case were not authenticated as
business records, and that fact affects their status in regard to the Confrontation
Clause. If the records had been authenticated, we could be sure that they were not
testimonial, that is, that they were not prepared for use at trial. Without knowing
that they were prepared in the ordinary course of a business, among the other
requirements of Evid.R. 803(6), we cannot determine that they are nontestimonial.
We thus find that the admission of the records in this case was constitutional
error.
                               Harmlessness Review
         {¶ 43} In determining whether admission of the cell-phone records was
harmless, the court below applied the “harmless beyond a reasonable doubt”
standard of review. Hood, 2010-Ohio-5477, at ¶ 27. “Where constitutional error
in the admission of evidence is extant, such error is harmless beyond a reasonable
doubt if the remaining evidence, standing alone, constitutes overwhelming proof
of [the] defendant’s guilt.” State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323
(1983), paragraph six of the syllabus. The court below concluded, “Considering
Hill’s devastating testimony against appellant, we cannot find that the admission
of the cell phone records contributed to appellant’s conviction.” Id. at ¶ 30. We
agree that the admission of the cell-phone records was harmless beyond a
reasonable doubt.
         {¶ 44} The evidence of Hood’s guilt was overwhelming. We first note
that jurors did not have to believe that Hood pulled the trigger to find him
responsible for Peet’s death; they just had to find that he participated in the
criminal act that led to Peet’s death. Kareem Hill was a co-conspirator and
eyewitness; Hill’s DNA was found at the scene. His version of events inside the




                                         15
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house was consistent with testimony from the victims. He provided detailed
testimony against Hood.
       {¶ 45} Hill’s testimony was, by itself, disastrous for the defense. And it
was corroborated by other evidence. Hood’s DNA was found in Hill’s vehicle, on
a cigar tip in the front ashtray; Hood could not be ruled out as a contributor to
DNA found on the right and left rear interior passenger doors of Hill’s vehicle.
Peet could not be ruled out as a contributor of part of the mix of DNA found on
the interior left rear passenger door, corroborating Hill’s testimony that Hood and
Peet had been together in Hill’s vehicle.
       {¶ 46} When police surrounded Hill’s vehicle in the McDonald’s parking
lot following the robbery, Hood was inside. Also in the vehicle were cell phones
stolen during the robbery, as well as cash. A large amount of cash was found in
Hood’s possession.
       {¶ 47} What role did the cell-phone records play in Hood’s conviction?
Upon review, we conclude that the records were of minimal probative value and,
at most, merely cumulative in effect. Veverka testified that cell-tower logs placed
Hood in the vicinity of the crime. But there were no calls to or from Hood
between 2:52 a.m. and 6:24 a.m. on the morning of the crime. The break-in
occurred at around 5:00 a.m., so the cell towers do not place him in the vicinity at
the crucial time.
       {¶ 48} In one respect, the phone records could even be seen as weakening
the state’s case against Hood.     As the defense pointed out during its cross-
examination of Hill, the records reflect calls made between Hill and Hood at times
when the two men were, according to Hill, together in Hill’s car. Hill had no
explanation for why two people would communicate by phone when they were
both inside the same car.
       {¶ 49} Terrence Davis’s records were also introduced. The records reveal
no contact with Hood, but there is contact with Hill. This does back up Hill’s




                                            16
                               January Term, 2012




testimony that conversations regarding planning occurred between someone using
Hill’s phone and Davis.
       {¶ 50} But the key evidence—the evidence that places Hood inside the
house participating in the crimes—does not depend in any way on the cell-phone
records. DNA evidence proves that Hill was there, and Hill placed Hood there,
armed with an Uzi, wearing latex gloves, and participating in the robberies.
Victim testimony corroborated to a large extent Hill’s version of events inside the
house. Hood was in the vehicle containing the spoils of the robberies soon after
they occurred. We thus conclude that the admission of the cell-phone records did
not contribute to Hood’s conviction and that their admission was harmless beyond
a reasonable doubt.
       {¶ 51} We therefore affirm the decision of the court of appeals.
                                                               Judgment affirmed.
       O’CONNOR,      C.J.,   and   LUNDBERG     STRATTON,     O’DONNELL,      and
LANZINGER, JJ., concur.
       CUPP, J., concurs in judgment only.
       KENNEDY, J., not participating.
                              __________________
       CUPP, J., concurring in judgment only.
       {¶ 52} I concur in judgment only. I would modify the original majority
opinion as suggested in the memorandum in support of reconsideration filed by
the amicus curiae Attorney General of Ohio. The opinion as modified should
specifically clarify that violations of the Confrontation Clause and violations of
evidentiary hearsay rules are not coextensive.
                              __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Kristen
L. Sobieski, Assistant Prosecuting Attorney, for appellee.




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                            SUPREME COURT OF OHIO




       Timothy Young, Ohio Public Defender, and Melissa M. Prendergast,
Assistant Public Defender, for appellant.
       Michael DeWine, Ohio Attorney General, Alexandra T. Schimmer,
Solicitor General, Elisabeth A. Long, Deputy Solicitor, and Samuel Peterson,
Assistant Attorney General, urging affirmance for amicus curiae, state of Ohio.
                           ______________________




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