[Cite as State v. Guyton, 2016-Ohio-8110.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2016-A-0023
        - vs -                                 :

EDWIN M. GUYTON,                               :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00380.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Desirae D. DiPiero Chieffo, 7330 Market Street, Youngstown, OH 44512 (For
Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Edwin M. Guyton, appeals his conviction for

Operating a Vehicle While Under the Influence.       The issues before this court are

whether a trial court commits plain error by admitting a 911 recording into evidence,

where the recording is introduced during the testimony of the witness making the call

but is not otherwise authenticated, and whether a defendant is deprived of effective
assistance of counsel by counsel’s failure to object to the admission of such 911

recording. For the following reasons, we affirm the decision of the court below.

       {¶2}      On August 19, 2015, the Ashtabula County Grand Jury returned an

Indictment, charging Guyton with Operating a Vehicle While Under the Influence, a

felony of the third degree in violation of R.C. 4511.19(A)(1)(f) (“[t]he person has a

concentration of seventeen-hundredths of one per cent or more by weight per unit

volume of alcohol in the person’s whole blood”) and (G)(1)(e) (“offender * * * has been

convicted of or pleaded guilty to a violation of division (A) of this section that was a

felony”); and Operating a Vehicle While Under the Influence, a felony of the third degree

in violation of R.C. 4511.19(A)(1)(a) (“[t]he person is under the influence of alcohol, a

drug of abuse, or a combination of them”) and (G)(1)(e). Both Counts included R.C.

2941.1413 specifications that “the offender, within twenty years of committing the

offense[s], previously had been convicted of or pleaded guilty to five or more equivalent

offenses.”

       {¶3}      On August 25, 2015, Guyton appeared for arraignment and entered a plea

of not guilty.

       {¶4}      On February 23 and 24, 2016, the case was tried before a jury. The

following testimony and evidence were presented by the State.

       {¶5}      Allyson Heinz testified that, on June 16, 2015, she was working at Circle K

on Main Avenue in Ashtabula. At about 3:00 a.m., she “noticed a car pulling into the

driveway and stepping on the brakes repeatedly, attempting to pull up to the gas pumps

and narrowly hitting [sic] them.” After sitting in the vehicle “awhile,” Guyton exited,

approached Heinz, told her that he was “fucked up,” and asked her to pump gas for him.




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Heinz asked him “if everything was okay.”            Guyton responded “yes,” and gave her

money for gas. Heinz returned to the store and called 911 from her cell phone to report

an impaired driver. Heinz assisted Guyton in pumping the gas because he was unable

to place the pump nozzle into the neck of the gas tank. While assisting Guyton, Heinz

remained connected with the dispatcher.

       {¶6}   Heinz described Guyton as noticeably intoxicated: he smelled of alcohol,

stumbled, and slurred his words.

       {¶7}   A recording of the 911 call was played for the jury. During the course of

the call, Heinz reported that Guyton drove away from the gas station “towards the

Bunker Hill area.”

       {¶8}   After “five to ten minutes,” Guyton returned to the Circle K. “He attempted

to pull into one of the parking spaces by the store, and he was in two or three parking

spaces.” Guyton said he needed gas and, when Heinz told him he had just received

gas, he began to argue with her. Heinz told him to pull his vehicle up to a pump and

she would put gas in it. Guyton asked if Heinz could move the vehicle and she replied

that she was not allowed to do that. Guyton moved his vehicle “into the middle of the

parking lot in between the parking spaces and the pumps.” Heinz went inside the store

and called 911 again.

       {¶9}   A recording of the second 911 call was played for the jury.

       {¶10} Heinz went back outside and Guyton became agitated because she would

not move the vehicle. He then asked her to help hold his pants up. Heinz held his

pants at waist level until the police arrived.




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       {¶11} Patrolman Dan Gillespie of the Ashtabula Police Department testified that,

on June 16, 2015, he responded to a report of a possible intoxicated driver at Circle K in

Ashtabula. He encountered Guyton standing in the doorjamb of his vehicle, with Heinz

holding his pants up. The keys to the vehicle were in the ignition and the engine was

idling. Gillespie walked Guyton to the Circle K building. He noted that Guyton had a

strong odor of alcohol about him, almost fell over while walking, slurred his speech, and

had difficulty speaking and understanding what was said to him. Guyton said that his

girlfriend had driven him to the Circle K.

       {¶12} Officer Gillespie requested that Guyton perform field sobriety tests, which

request Guyton refused for the reason that the officer had not observed him operate a

vehicle. Gillespie placed Guyton under arrest for Operating a Vehicle While Under the

Influence. Guyton was transported to the Ashtabula County Medical Center where his

blood was drawn.

       {¶13} Douglas Rhode, the supervisor of chemistry and toxicology at the Lake

County Crime Laboratory in Painesville, testified that he tested Guyton’s blood using

gas chromatography and determined that “the whole blood ethanol result is 0.283

grams per 100 milliliters.”    Rhode noted that, at .08 grams per 100 milliliters, “all

individuals will exhibit impairment while driving a vehicle.”

       {¶14} Rhode also performed a retrograde extrapolation, “a mathematical

calculation to determine a blood alcohol concentration at a particular point in time.”

Rhode explained that this was necessary because Guyton’s sample was collected

outside the three-hour “window of opportunity” established by law.        Assuming that

Guyton did not consume alcohol after 2:31 a.m. on the morning in question, his blood




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alcohol concentration at 3:01 a.m. would be between .341 and .395 grams per 100

milliliters. Assuming that Guyton did consume alcohol after 2:31 a.m. on the morning in

question, his blood alcohol concentration at 3:01 a.m. would be between .278 and .320

grams per 100 milliliters. In either case, Rhode testified to a reasonable degree of

scientific certainty that Guyton would have been impaired.

       {¶15} The parties entered into a joint stipulation that Guyton “is the person

convicted of five prior ovi convictions as identified in the specification of counts one and

two of the indictment.”

       {¶16} On February 24, 2016, the jury returned its verdict, finding Guyton guilty

on both counts of Operating a Vehicle While Under the Influence.

       {¶17} On the same day, a sentencing hearing was held. The trial court merged

Count One, R.C. 4511.19(A)(1)(f) (“[t]he person has a concentration of seventeen-

hundredths of one per cent or more by weight per unit volume of alcohol in the person’s

whole blood”), into Count Two, R.C. 4511.19(A)(1)(a) (“[t]he person is under the

influence of alcohol, a drug of abuse, or a combination of them”). The court sentenced

Guyton to serve three years in prison for Operating a Vehicle While Under the Influence

consecutively to five years in prison for the repeat-offender specification for an

aggregate prison sentence of eight years. Guyton was ordered to serve this prison

sentence consecutively to the prison sentence imposed in Ashtabula C.P. No. 2014 CR

00446. The court further imposed a mandatory fine of $1,350 and a lifetime license

suspension and ordered Guyton to complete an alcohol addiction program.

       {¶18} On February 25, 2016, the Judgment Entry of Sentence was journalized.




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       {¶19} On March 18, 2016, Guyton filed a Notice of Appeal. On appeal, he raises

the following assignments of error:

       {¶20} “[1.] The trial court committed plain error when it admitted the 911 audio

recordings.”

       {¶21} “[2.] Whether counsel was ineffective by failing to object to the admission

of the 911 audio recordings.”

       {¶22} Under the first assignment of error, Guyton argues the trial court

committed plain error by admitting the 911 audio recording into evidence.             Guyton

contends the recording was inadmissible because it was not properly authenticated and

constituted hearsay.

       {¶23} “It is a general rule that an appellate court will not consider any error which

counsel for a party complaining of the trial court’s judgment could have called but did

not call to the trial court’s attention at a time when such error could have been avoided

or corrected by the trial court.” State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545

(1968), paragraph three of the syllabus.

       {¶24} The failure to object to the admission of testimony or evidence waives all

but plain error. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶

108. “Plain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the court.” Crim.R. 52(B). To support a finding of

plain error, “there must be an error, i.e., a deviation from a legal rule”; “the error must be

plain * * * meaning * * * an ‘obvious’ defect in the trial proceedings”; and “the error must

have affected ‘substantial rights’ * * * mean[ing] that the trial court’s error must have

affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d




                                              6
1240 (2002). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of

the syllabus.

       {¶25} “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). “This low threshold

standard does not require 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. Miller, 11th Dist. Trumbull No.

2014-T-0061, 2015-Ohio-956, ¶ 21.

       {¶26} For the purposes of authentication, “[i]dentification of a voice” may be

made “by opinion based upon hearing the voice at any time under circumstances

connecting it with the alleged speaker.”            Evid.R. 901(B)(5).       Thus, a witness is

competent to identify his own voice in a recording. State v. Riddle, 7th Dist. Mahoning

Nos. 99 CA 147, 99 CA 178, and 99 CA 204, 2001-Ohio-3484, ¶ 34 (“pursuant to

Evid.R. 901(B)(5), a witness may identify his own voice”).

       {¶27} In the present case, the State played the recordings of two 911 calls made

by Heinz, who never testified that it was her voice in the recordings or that the

recordings were fair and accurate representations of the calls that she made to 911.

Appellant’s brief at 8. The failure to authenticate the recordings, however, does not rise

to the level of plain error as it did not affect the outcome of the trial.




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       {¶28} The recordings were played during Heinz’ testimony and she gave no

indication that the recordings were anything but true and accurate. As the recordings

were played, the prosecutor repeatedly asked Heinz for clarification about what she and

Guyton were doing during the 911 calls. For example, on the recording Heinz is heard

to say, “he’s heading towards the Bunker Hill area.” The prosecutor asked if she meant

that Guyton left the gas station while she was still on the phone. Heinz confirmed that

this was the case. Again, the prosecutor asked about the number from which the call in

the recording was placed and Heinz explained that she called from her cellular phone.

Again, the prosecutor asked about a fifty second period of silence on the recording and

Heinz explained that she was pumping gas for Guyton as well as trying to view his

license plate number during this time.

       {¶29} Although it would have been proper for the prosecutor to ask Heinz to

confirm that it was her voice in the recordings and that the recordings were accurate

reproductions of the 911 calls, there was no suggestion in Heinz’ testimony that the

recordings were not what the State claimed them to be. Moreover, the substance of the

recordings was wholly consistent with Heinz’ in-court testimony as to what occurred on

the night in question.

       {¶30} Guyton further argues that the State “presented no evidence whatsoever

of chain of custody for the 911 audio recordings,” thus further compromising their

authenticity. Appellant’s brief at 9.

       {¶31} “The chain of custody of a piece of evidence is part of the authentication

and identification requirement of Evid.R. 901.” State v. Rhodes, 11th Dist. Lake No.

2000-L-089, 2001 Ohio App. LEXIS 5650, 16 (Dec. 14, 2001). “A strict chain of custody




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is not always required in order for physical evidence to be admissible.” State v. Wilkins,

64 Ohio St.2d 382, 389, 415 N.E.2d 303 (1980). Rather, “[t]he state need only establish

that it is reasonably certain that substitution, alteration or tampering did not occur.”

State v. Blevins, 36 Ohio App.3d 147, 150, 521 N.E.2d 1105 (10th Dist.1987). “[A]ny of

the alleged breaks in the evidentiary chain go to the weight, instead of the admissibility,

of the evidence.” In re Jackson, 11th Dist. Portage No. 2006-P-0119, 2007-Ohio-4955,

¶ 28; State v. Richey, 64 Ohio St.3d 353, 360, 595 N.E.2d 915 (1992) (“[t]he possibility

of contamination goes to the weight of the evidence, not its admissibility”).

       {¶32} In the present case, the absence of any doubt, hesitation, or confusion in

Heinz’ testimony regarding the content of the 911 recordings demonstrates with

reasonable certainty that alteration of the recordings did not occur.           It has been

observed that the necessity of establishing the chain of custody is more critical with

respect to physical evidence than to audio recordings, where authentication by the

person making the statements in the recordings serves to preclude the likelihood of

tampering or alteration. State v. Sprouse, 10th Dist. Franklin No. 05AP-467, 2006-Ohio-

7329, ¶ 32 (“[the defendant’s] ‘chain of custody’ argument [was] better suited to

evidence that cannot be readily identified, or could be despoiled, altered, or subject to

tampering”) (citation omitted).

       {¶33} Finally, Guyton contends that the “911 audio was offered to improperly

bolster the testimony of Ms. Heinz,” and, as such, did not qualify for admission of a prior

consistent statement. Appellant’s brief at 9.

       {¶34} Contrary to Guyton’s position, the 911 recordings constitute admissible

hearsay under the present sense exception to the hearsay rules. This rule allows for




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the admission of “[a] statement describing or explaining an event or condition made

while the declarant was perceiving the event or condition, or immediately thereafter

unless circumstances indicate lack of trustworthiness.” Evid.R. 803(1); State v. Daniels,

8th Dist. Cuyahoga No. 103663, 2016-Ohio-7299, ¶ 20 (“[p]recedent overwhelmingly

supports the conclusion that 911 calls are admissible either as excited utterances or

present sense impressions”) (citation omitted).

       {¶35} In the 911 recordings at issue herein, Heinz was reporting events as she

witnessed them and, thus, the statements were admissible. State v. Urso, 195 Ohio

App.3d 665, 2011-Ohio-4702, 961 N.E.2d 689, ¶ 69 (11th Dist.) (“during his 911 call,

Mr. Beil described appellant’s reckless driving as he was perceiving it”).

       {¶36} We find no plain error with respect to the admission of the 911 recordings.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 187-188

(in a capital murder case, the alleged failure to authenticate and establish a chain of

custody for a 911 recording did not rise to the level of plain error).

       {¶37} The first assignment of error is without merit.

       {¶38} In his second assignment of error, Guyton argues that he received

ineffective assistance of counsel. He asserts that there was a reasonable probability

that, if trial counsel had objected to the admission of the 911 audio recordings which

were not authenticated and which constituted inadmissible hearsay and improper

bolstering, the result of the trial would have been different. Appellant’s brief at 11.

       {¶39} To reverse a conviction for ineffective assistance of counsel, the

defendant must prove “(1) that counsel’s performance fell below an objective standard

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




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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). “A

defendant’s failure to satisfy one prong of the Strickland test negates a court’s need to

consider the other.” Id. at 389.

       {¶40} In the present case, there is no reasonable probability that the outcome of

the trial would have been different had counsel objected to the admission of the 911

recordings.   Heinz was questioned repeatedly about the statements made in the

recordings and the circumstances in which they were made. There is no reason to

believe that, if asked, she would not have authenticated the recordings. And if counsel

had objected to their admissibility as hearsay, such objection would have been

overruled for the reasons set forth above.

       {¶41} In the broader context of Guyton’s defense, Guyton did not contest the

issue of his intoxication at trial, but, rather, maintained that he was not operating a

motor vehicle. Heinz, however, testified that she witnessed Guyton operate the vehicle

on two occasions and that no one else was present in the vehicle. Although he did not

observe Guyton operate a vehicle, Officer Gillespie corroborated Heinz’ testimony that

no one else was present in the vehicle. Thus, there was compelling probative evidence

of Guyton’s guilt even apart from the 911 recordings. Assuming arguendo that trial

counsel was deficient for not objecting to the admission of the 911 recordings, the

outcome of the trial in this case was not fundamentally unfair.

       {¶42} The second assignment of error is without merit.




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      {¶43} For the foregoing reasons, Guyton’s conviction for Operating a Vehicle

While Under the Influence is affirmed. Costs to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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