[Cite as State v. Mangan, 2014-Ohio-960.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    GREENE COUNTY

 STATE OF OHIO                                  :
                                                :     Appellate Case No. 2013-CA-3
           Plaintiff-Appellee                   :
                                                :     Trial Court Case No. 12-CR-143
 v.                                             :
                                                :     (Criminal Appeal from
 NOEL E. MANGAN                                 :     (Common Pleas Court)
                                                :
           Defendant-Appellant                  :
                                                :
                                            ...........

                                            OPINION

                             Rendered on the 14th day of March, 2014.

                                            ...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE R. HAYDEN, Reg. #0082881,
Greene County Prosecutor’s Office, 55 Greene Street, Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. #0072135, 36 North Detroit Street, Suite 102 Xenia, Ohio 45385
      Attorney for Defendant-Appellant

                                            .............

FAIN, J.

        {¶ 1}    Defendant-appellant Noel E. Mangan appeals from his conviction and sentence

for one count of Illegal Manufacture of Drugs, in violation of R.C. 2929.04(A), a felony of the

second degree; two counts of Illegal Assembly or Possession of Chemicals for the Manufacture
                                                                                                       2


of Drugs, in violation of 2925.041, felonies of the third degree; three counts of Aggravated

Trafficking in Drugs, in violation of R.C. 2925.03(A)(1), felonies of the fourth degree; and one

count of Possession of Criminal Tools, in violation of R.C. 2923.24(A), a felony of the fifth

degree.     Mangan contends that the trial court erred by admitting in evidence audiovisual

recordings made by a surreptitious miniature recording device on a car key fob that was uploaded

from the recording device onto a computer hard drive maintained by the police department.

Mangan argues that the duplicates of the original recordings were not admissible under Evid.R.

1003, because a genuine question was raised as to the authenticity of the originals, since the times

and dates impressed onto the recordings by the recording device were not correct.

          {¶ 2}   We conclude that except for the time and date impressions, which the State

acknowledged were not correct, there was unrebutted testimony of the undercover police officer

present when the recordings were made that they accurately depicted the events shown and heard

on the recordings. The recordings were not offered to prove the dates and times of the events

depicted thereupon.

          {¶ 3}   Mangan also contends that the trial court erred by overruling his motion to

suppress evidence obtained as the result of consensual entry into his residence of an undercover

police officer for the ostensible purpose of purchasing illegal drugs.       We disagree, on the

authority of Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); and State

v. Posey, 40 Ohio St.3d 420, 534 N.E.2d 61 (1988). Accordingly, the judgment of the trial court

is Affirmed.



                   I. An Undercover Police Officer Buys Methamphetamine
[Cite as State v. Mangan, 2014-Ohio-960.]
                         from Mangan at his Residence on Two Occasions

        {¶ 4}    On February 12, 2012, Naomi Penrod, a Yellow Springs Police Detective,

entered Mangan’s residence with a confidential informant for the purpose of purchasing

methamphetamine. Penrod had on her person a surreptitious miniature recording device in the

form of a car key fob. After purchasing the methamphetamine, Penrod was able to observe

Mangan manufacturing methamphetamine in a pole barn on his property.

        {¶ 5}    Penrod subsequently turned the recording device over to Sugarcreek Township

Police Detective Craig Black, who was also a member of the Greene County A. C. E. Task Force.

 The recording device had a limited storage capacity, so Black uploaded the file to a secure file

maintained on a computer at the Task Force, deleting the recording stored on the recording

device in order that it could be reused.

        {¶ 6}    On March 26, 2012, Penrod and the informant again went to Mangan’s residence,

and again purchased methamphetamine. This transaction was also captured on a surreptitious

audiovisual recording device, which was later turned over to Black, who again uploaded the

recording to a secure file on a Task Force computer.



                                   II. The Course of Proceedings

        {¶ 7}    Mangan was later charged by indictment with two counts of Illegal Manufacture

of Drugs, two counts of Illegal Assembly or Possession of Chemicals for the Manufacture of

Drugs, three counts of Aggravated Trafficking in Drugs, and one count of Possession of Criminal

Tools. The case was tried to a jury. At the conclusion of the State’s case, the trial court granted

Mangan’s Crim.R. 29 motion for a judgment of acquittal on one of the Illegal Manufacture of

Drugs counts. Mangan presented no evidence. Mangan was found guilty of all the remaining
                                                                                                  4


counts.

          {¶ 8}     The trial court merged one of the Illegal Assembly or Possession of Chemicals

for the Manufacture of Drugs convictions with the Illegal Manufacture of Drugs conviction, those

offenses having been found to be allied offenses of similar import, and the State having elected to

have Mangan sentenced on the Illegal Manufacture conviction. The trial court also merged the

Possession of Criminal Tools conviction with the remaining Illegal Assembly or Possession of

Chemicals for the Manufacture of Drugs conviction, those offenses having been found to be

allied offenses of similar import, and the State having elected to have Mangan sentenced on the

Illegal Assembly or Possession conviction.

          {¶ 9}     The trial court sentenced Mangan to five years in prison on the Illegal

Manufacture of Drugs conviction, to eighteen months in prison for each of the three Aggravated

Trafficking convictions, and to thirty-six months in prison for the Illegal Assembly or Possession

conviction, and ordered all sentences to be served concurrently, for a total sentence of five years

in prison. The trial court also suspended Mangan’s driver’s license for five years and ordered

him to pay court costs, but did not impose a fine.

          {¶ 10} From his conviction and sentence, Mangan appeals.



                  III. No Genuine Question Was Raised as to the Authenticity of the

                       Originals of the Audiovisual Recordings of the Offenses

                    (Except for the Date and Time Impressions, for which Purpose

             the Exhibits Were Not Offered), Therefore the Trial Court Did Not Err

                   in Admitting the Duplicate Recordings in Possession of the Police
                                                                                                      5


       {¶ 11} Mangan’s First Assignment of Error is as follows:

               THE TRIAL COURT ERRED IN THE ADMISSION OF EVIDENCE AT

       TRIAL.

       {¶ 12} In this assignment, Mangan takes exception to the admission of the audiovisual

recordings of the offenses in the possession of the police. Mangan argues that the recordings,

having been copied onto the computer hard drive from the original recording device, are

duplicates, and are therefore covered by Evid.R. 1003: “A duplicate is admissible to the same

extent as an original unless (1) a genuine question is raised as to the authenticity of the original or

(2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”

Mangan argues that he did raise a genuine question as to the authenticity of the original

recording, because Officer Black testified that the times and dates “stamped” on the recordings

by the audiovisual recording device were not correct.

       {¶ 13} Officer Penrod, who was present when both recordings were made, testified that

they accurately depicted the events shown and heard on each recording. Her testimony in this

regard was not rebutted. Therefore, the only question raised as to the authenticity of the original

recordings is the time and date “stamped” on the recordings. The State acknowledged that the

times and dates shown on the recordings were not correct, but offered other evidence to show the

times and dates when the events depicted in each recording occurred. Therefore, the recordings

were not offered to prove the times and dates of the occurrences depicted therein, and no genuine

question was raised as to the authenticity of each original recording for the purposes for which

each was offered.

       {¶ 14} We might reach a different result if an immaterial discrepancy in a duplicate was
                                                                                                  6


of a nature that reasonably implicated the authenticity of the original in general. But it is

common knowledge that time and date stamps on recording devices, unless the devices are

connected to the internet, must be correctly set up by a user initially, and must be maintained, so

that inaccuracies in a time and date stamp on an audiovisual recording device often occur without

impugning in any way the accuracy of the audiovisual recordings underlying the time and date

stamps.

       {¶ 15} We conclude, therefore, that the trial court did not err in admitting the

audiovisual recordings in evidence. Mangan’s First Assignment of Error is overruled.



 IV. The Fact that a Person Given Consent to Enter a Residence Is an Undercover Police

           Officer Does Not Vitiate the Consent for Fourth Amendment Purposes

       {¶ 16} Mangan’s Second Assignment of Error is as follows:

               THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO

       SUPPRESS.

       {¶ 17} In this assignment of error, Mangan argues that Officer Penrod’s entries into his

residence were unlawful because they were without his consent, since he did not know Penrod

was a police officer, and they were without a warrant. Therefore, the evidence obtained from

those entries should have been suppressed.

       {¶ 18} In State v. Posey, 40 Ohio St.3d 420, 534 N.E.2d 61 (1988), paragraph three of

the syllabus, the Supreme Court of Ohio held: “When an individual gives consent to another to

enter a private area wherein illegal activities are being conducted, the consent does not lose its

status of being freely and voluntarily given merely because it would not have been given but for
                                                                                             7


the fact that the other person failed to identify himself as a police officer or agent.”

       {¶ 19} At 428, the Supreme Court of Ohio cited Lewis v. United States, 385 U.S. 206,

87 S.Ct. 424, 17 L.Ed.2d 312 (1966). In Lewis, at 211, the United States Supreme Court held

that an undercover narcotics agent could lawfully enter a home for the purpose of purchasing

illegal drugs without violating the Fourth Amendment, just as in the case before us. On the

authority of Posey and Lewis, Mangan’s Second Assignment of Error is overruled.



                                           V. Conclusion

       {¶ 20} Both of Mangan’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

                                           .............

FROELICH and WRIGHT, JJ., concur.


(Hon. Thomas R. Wright, Eleventh District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).



Copies mailed to:

Stephen K. Haller
Stephanie R. Hayden
Jay A. Adams
Hon. Stephen Wolaver
