[Cite as State v. Rios, 2011-Ohio-4720.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 10CA0059

vs.                                               :    T.C. CASE NO. 09CR0204

JUAN RIOS                                          :

        Defendant-Appellant                        :

                                           . . . . . . . . .

                                            O P I N I O N

                 Rendered on the 16th day of September, 2011.

                                           . . . . . . . . .

Andrew D. Wilson, Pros. Attorney, Atty. Reg. No.0073767, Andrew
R. Picek, Asst. Pros. Attorney, Atty. Reg. No. 0082121, P.O. 1608,
Springfield, OH 45501
     Attorney for Plaintiff-Appellee

Keith O’Korn, Atty. Reg. No.0069834, 440 Polaris Parkway, Suite
150, Westerville, OH 43082
     Attorney for Defendant-Appellant

                                           . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Juan Rios, appeals from his conviction for

vandalism, R.C. 2909.05(B)(2).

        {¶ 2} On the morning of February 17, 2009, Lieutenant Vernon

Whitt of the Jail Division of the Clark County Sheriff’s Department
                                                                   2

learned that a window in the dayroom of the north block on the

fifth floor of the jail had been broken.     At that time, Defendant

was being held in a cell next to the dayroom, awaiting trial on

a capital murder charge, and had access to the dayroom.

     {¶ 3} Lieutenant Whitt reviewed recordings of calls made from

a telephone in the dayroom on the evening before, February 16,

2009.   In a call made to Shianne Rice, a male caller was heard

to say that he “had been working on this hole all f-----g day.”

 The caller also asked Rice to assist him in bringing drugs into

the jail through a broken window.

     {¶ 4} Defendant was indicted on one count of vandalism, R.C.

2909.05(B)(2).   At Defendant’s trial, Lieutenant Whitt identified

the male voice heard on the recorded telephone calls, which were

played for the jury, as Defendant’s voice.   Clark County Facilities

Director Jackie Ashworth testified that the cost of replacing panes

broken from the window was $1,400.00.

     {¶ 5} Defendant was found guilty of the vandalism charge and

was convicted.    He was sentenced to a one year prison term.

Defendant filed a notice of appeal.

     FIRST ASSIGNMENT OF ERROR

     {¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED

THE STATE TO PLAY TWO PORTIONS OF RECORDED JAIL PHONE CALLS AND

THEN ADMITTED SAID CALLS AS AN EXHIBIT.”
                                                                   3

     {¶ 7} The admission or exclusion of evidence rests within the

sound discretion of the trial court and will not be disturbed on

appeal absent an abuse of that discretion.    State v. Sage (1987),

31 Ohio St.3d 173.

     {¶ 8} “‘Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or

arbitrary.

     {¶ 9} “A decision is unreasonable if there is no sound

reasoning process that would support that decision.       It is not

enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.”   AAAA Enterprises, Inc. v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.

     {¶ 10} Ann Woodruff testified that she is employed by the Clark

County Information Services Department.    Woodruff testified that

Clark County has entered into a contract with a service in Texas

to record calls made by inmates in the Clark County Jail from

telephones made available to them there.     The calls are traceable
                                                                     4

to a calling card purchased by an inmate.        Woodruff is able to

retrieve those calls using an internet web interface.

     {¶ 11} Woodruff testified that Lieutenant Vernon Whitt of the

Clark County Sheriff’s Department asked her to download telephone

calls made on February 23, 2009, from a particular telephone in

the Clark County Jail.     She did so, and transcribed those calls

onto a tape which she marked with her initials.         The tape was

introduced as State’s Exhibit 2.

     {¶ 12} Lieutenant   Whitt   corroborated   Woodruff’s   testimony

concerning the request he made of her to record certain phone calls.

 He re-recorded two of those calls onto a disc, which was marked

as State’s Exhibit 1.     Whitt testified that the calls were made

from a telephone in a day room of the jail to which Defendant Rios

had access.    Whitt testified that the calls were collect calls

made to Shianne Rice.     Whitt identified the male voice heard on

the tapes as the voice of Defendant Rios.

     {¶ 13} Before the recording of telephone calls marked as State’s

Exhibit 1 was played for the jury, Rios objected on several grounds,

including “relevancy” and “chain of custody.”     The court overruled

what it characterized as Defendant’s “foundational” objections

based on Woodruff’s testimony concerning how the calls were

transcribed.   State’s Exhibit 1 was played for the jury.       In one

of the recorded calls, the male voice Lieutenant Whitt had
                                                                   5

identified as Defendant’s voice is heard to say, with reference

to the broken window, that he “had been working on this hole all

f-----g day.”

     {¶ 14} Shianne Rice testified that Rios called her from the

jail in February of 2009.     Rice testified that Defendant told her

a window in the jail was broken, but he didn’t say how it had been

broken.

     {¶ 15} Evid.R. 103 states, in pertinent part:

     {¶ 16} “(A) Effect of erroneous ruling.      Error may not be

predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected, and

     {¶ 17} “(1) Objection.    In case the ruling is one admitting

evidence, timely objection or motion to strike appears of record

stating the specific ground of objection, if the specific ground

was not apparent from the context.”

     {¶ 18} Rios argues that the trial court erred when it allowed

State’s Exhibit 1 to be played for the jury, for two reasons.

First, because “one of the snippets played implicated the Appellant

in soliciting another to illegally convey contraband into the Clark

County Jail.”   Rios made that objection at trial.    The objection

was apparently grounded on Evid.R. 404(B) and its prohibition

against evidence of other crimes, wrongs, or acts.   Second, because

“the State utterly failed to provide any foundation for how
                                                                   6

Lieutenant Whitt would have any ability or knowledge to identify

Appellant’s voice on a recorded phone call . . .”      Rios made no

objection on that basis at trial.

     {¶ 19} The court overruled Defendant’s objection to evidence

that Defendant intended to bring drugs into the jail through the

hole in the broken window, finding “that’s relevant because it

goes to show identity or intent or plan.”   (T. 60).   Those matters

are identified by Evid.R. 404(B) as exceptions to evidence of other

crimes, wrongs, or acts, that Evid.R. 404(B) otherwise prohibits.

 Those exceptions also include “motive.”

     {¶ 20} Evidence establishing motive, intent, scheme or plan

is always material because it shows why one version of events should

be believed over another.    State v. Crotts, 104 Ohio App.3d 432,

2004-Ohio-6650, at ¶20.   Defendant argued that he is not the only

inmate who could have broken the window or spoken about it.

Evidence that Defendant intended to bring drugs through the broken

window is admissible to prove a motive on his part for breaking

the window, which is the conduct that was the basis of the crime

with which he was charged.    We find no abuse of discretion.

     {¶ 21} Defendant did not specifically object at trial to

Lieutenant Whitt’s identification of the male voice heard on

State’s Exhibit 1 as Defendant’s voice, on the ground that

Lieutenant Whitt failed to provide the necessary foundational
                                                                           7

evidence demonstrating how he knew that.         Any error for that reason

in admitting the evidence is therefore waived for purposes of

appeal.        Evid.R. 103(A)(1).       Plain error may nevertheless be

noticed.       Crim.R. 52(B).       Plain error does not exist unless it

can be said that but for the error, the outcome of the proceeding

clearly would have been different.           State v. Long (1978), 53 Ohio

St.2d 91.

      {¶ 22} Defendant’s argument implicates Evid.R. 901, which

provides, in pertinent part:

      {¶ 23} “(A) General provision

      {¶ 24} “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.

      {¶ 25} “(B) Illustrations.        By way of illustration only, and

not   by   way    of   limitation,     the   following   are   examples   of

authentication or identification conforming with the requirements

of this rule:

      {¶ 26} “(1) Testimony of witness with knowledge. Testimony that

a matter is what it is claimed to be.

      {¶ 27}     “*     *       *

      {¶ 28} “(5) Voice identification. Identification of a voice,

whether heard firsthand or through mechanical or electronic
                                                                     8

transmission or recording, by opinion based upon hearing the voice

at any time under circumstances connecting it with the alleged

speaker.”

     {¶ 29} “Voice    identification   is   established   by   opinion

evidence, that is, by testimony of a witness that, based on his

familiarity with a speaker’s voice, it is his belief that the voice

sought to be identified or authenticated is that of the specific

speaker.”     Weissenberger’s Ohio Evidence Treatise (2010 Ed.),

§901.68.    “The proponent of voice identification testimony must

establish by way of foundation that the witness has some familiarity

with the alleged speaker’s voice.”     Id., at §901.71.    Failure to

satisfy the familiarity requirement is subject to an objection

pursuant to Evid.R. 602, which provides: “A witness may not testify

to a matter unless evidence is introduced sufficient to the support

a finding that the witness has personal knowledge of the matter.”

     {¶ 30} The State argues that the jury could reasonably infer

that Lieutenant Whitt had the required familiarity with Defendant’s

voice.     The State points to the fact that Lieutenant Whitt was

assigned to the jail division of the Sheriff’s Office, and that

he had testified that jail personnel attempted to interview all

the inmates of the pod in which Defendant was housed about the

broken window.       We do not agree that such evidence satisfies

Evid.R. 901 or 602.     It would be speculative for the jury to find
                                                                     9

from that evidence the familiarity with Defendant’s voice that

Evid.R. 901(B)(5) requires.

     {¶ 31} Weissenberger     writes,    concerning    Evid.R.   901:

“Conceptually, the function of authentication or identification

is to establish, by way of preliminary evidence, a connection

between the evidence offered and the relevant facts of the case.”

 Id, at §901.1.     The example in Evid.R. 901(B)(5) of authentication

of a recording to identify a voice heard on the recording satisfies

that function.     However, Evid.R. 901(B) states that the examples

therein are “[b]y way of illustration only, and not by way of

limitation.”      Our plain error analysis requires an inquiry whether

other evidence was sufficient to demonstrate that the male voice

heard on the recordings played for the jury was Defendant’s voice.

     {¶ 32} Defendant was an inmate of the Clark County Jail on

February 23, 2009, when the calls heard on State’s Exhibit 1 were

made and recorded.     The calls were made from a telephone in a day

room of the jail to which Defendant had access.        The calls were

collect calls made to Shianne Rice.     Rice testified that Defendant

made calls to her from the jail during that time.        Rice further

testified that in at least one of the calls Defendant made to her,

Defendant told her of a window in the jail that was broken.        On

this record, and with respect to that particular evidence, the

jury could reasonably infer that the male voice heard on the
                                                                              10

recordings was Defendant Rios’s voice.               Therefore, we find that

the outcome of the trial, Defendant’s conviction based on the guilty

verdict the jury returned, would not clearly have been different

but   for   the    error    in     admitting      Lieutenant   Whitt’s     voice

identification       evidence.          Plain     error   is   therefore     not

demonstrated.      State v. Long.

      {¶ 33} Defendant’s first assignment of error is overruled.

      SECOND ASSIGNMENT OF ERROR

      {¶ 34} “THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

      {¶ 35} A   weight    of    the   evidence    argument    challenges   the

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive.      State v. Hufnagle (Sept. 6, 1996), Montgomery App.

No. 15563.       The proper test to apply to that inquiry is the one

set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:

      {¶ 36} “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the

evidence, the jury lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.”           Accord: State v. Thompkins, 78 Ohio St.3d

380, 1997-Ohio-52.
                                                                          11

      {¶ 37} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve.    State v. DeHass (1967), 10 Ohio St.2d 230. In State v.

Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:

      {¶ 38} “Because the factfinder . . . has the opportunity to

see   and   hear    the   witnesses,   the   cautious    exercise   of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial        deference   be    extended   to      the   factfinder’s

determinations of credibility.         The decision whether, and to what

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the factfinder, who has seen and heard

the witness.”

      {¶ 39} This court will not substitute its judgment for that

of the trier of facts on the issue of witness credibility unless

it is patently apparent that the trier of facts lost its way in

arriving at its verdict.            State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

      {¶ 40} Defendant argues that his conviction for vandalism is

against the manifest weight of the evidence because Lieutenant

Whitt could not credibly identify Defendant’s voice on the recorded

jail phone calls, inasmuch as he did not testify how he knew or

was able to recognize Defendant’s voice.             As we discussed in
                                                                 12

overruling Defendant’s first assignment of error, on the particular

facts in this case, the jury could reasonably infer from evidence

other than Lieutenant Whitt’s voice identification testimony that

the male voice heard on the recorded phone calls made from the

jail that were played for the jury was Defendant’s voice.      Any

error in admitting Lieutenant Whitt’s opinion was harmless in

relation to Defendant’s manifest weight claim.

     {¶ 41} Defendant also claims that his conviction is against

the manifest weight of the evidence because the State failed to

put on any evidence to prove chain of custody of the recorded jail

phone calls.   In State v. Hooper, Montgomery App. No. 22883,

2010-Ohio-4041, at ¶35, we observed:

     {¶ 42} “The State has the burden of establishing the chain of

custody of a specific piece of evidence, but the State's burden

is not absolute; ‘[t]he state need only establish that it is

reasonably certain that substitution, alteration or tampering did

not occur.’ State v. Barzacchini (1994), 96 Ohio App.3d 440,

457–458, 645 N.E.2d 137; State v. Blevins (1987), 36 Ohio App.3d

147, 150, 521 N.E.2d 1105. While authentication of evidence is

a condition precedent to its admission, the condition is satisfied

when the evidence is ‘sufficient to support a finding that the

matter in question is what its proponent claims.’ Evid.R. 901(A);

State v. Hunter, 169 Ohio App.3d 65, 861 N.E.2d 898, 2006–Ohio
                                                                      13

5113, at ¶ 16.”

       {¶ 43} Ann Woodruff, an employee of the Clark County Information

Services Department, testified at trial about the systems and

procedures in place for recording phone calls made from the jail

by inmates, and how she retrieved the recorded jail phone calls

made from a particular phone in the jail between February 13-17,

2009, and gave them to Lieutenant Whitt.       Furthermore, Lieutenant

Whitt testified regarding the request he made of Woodruff to

retrieve certain recorded jail phone calls in this case, and how

he personally made a copy of the recorded jail phone calls he

received from Woodruff and did not alter those recordings in any

way.    On the evidence presented in this case, it is reasonably

certain that no alteration or tampering with the recorded jail

phone calls occurred.

       {¶ 44} The trier of facts in this case, the jury, did not lose

its way simply because it chose to believe the State’s witnesses,

which it had a right to do.        DeHass.     The credibility of the

witnesses and the weight to be given to their testimony were matters

for the trier of facts to decide.        Id.

       {¶ 45} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier

of facts lost its way in choosing to believe the State’s witnesses,

or   that   a   manifest   miscarriage    of   justice   has   occurred.
                                                                     14

Defendant’s conviction is not against the manifest weight of the

evidence.

     {¶ 46} Defendant’s second assignment of error is overruled.

     THIRD ASSIGNMENT OF ERROR

     {¶ 47} “THE TRIAL COURT ERRED WHEN IT FAILED TO CREDIT APPELLANT

WITH ANY JAIL TIME CREDIT IN THE VANDALISM CASE AT SENTENCING GIVEN

THAT APPELLANT HAD NOT EVEN BEEN TRIED, CONVICTED OR SENTENCED

IN THE OTHER PENDING CAPITAL CASE, AND THUS, VIOLATED R.C. 2967.191

AND THE EQUAL PROTECTION CLAUSES OF THE FOURTEENTH         AMENDMENT TO

THE U.S. CONSTITUTION AND ARTICLE I, SECTION TWO OF THE OHIO

CONSTITUTION.”

     {¶ 48} Defendant argues that the trial court erred by failing

to award him jail time credit for the 414 days he spent in jail

awaiting trial on this vandalism charge.

     {¶ 49} In   State   v.   Coyle,   Montgomery   App.   No.   23450,

2010-Ohio-2130, at ¶5-7, this court stated:

     {¶ 50} “‘[W]here, for whatever reason, a defendant remains in

jail prior to his trial, he must be given credit on the statutorily

fixed sentence ultimately imposed for all periods of actual

confinement.’ White v. Gilligan (S.D.Ohio 1972), 351 F.Supp. 1012,

1014. The requirement enforces the Fourteenth Amendment right to

equal protection of the law. Workman v. Cardwell (N.D.Ohio 1972),

31 Ohio Mis. 99, 31 Ohio Misc. 99, 338 F.Supp. 893.
                                                                    15

     {¶ 51} “R.C. 2967.191 implements the equal protection right

by imposing on the department of rehabilitation and correction

the specific responsibility to ‘reduce the stated prison term of

a prisoner ... by the total number of days that the prisoner was

confined for any reason arising out of the offense for which the

prisoner was convicted and sentenced, including confinement in

lieu of bail while awaiting trial [,] ... and confinement while

awaiting transportation to the place where the prisoner is to serve

the prisoner's term.’

     {¶ 52} “‘Although   the   [department   of   rehabilitation   and

correction] has a mandatory duty pursuant to R.C. 2967.191 to credit

an inmate with the jail time already served, it is the trial court

that makes the factual determination as to the number of days of

confinement that a defendant is entitled to have credited toward

his sentence.’ State ex rel. Rankin v. Ohio Adult Parole Authority,

98 Ohio St.3d 476, 786 N.E.2d 1286, 2003-Ohio-2061, at ¶ 7.

Furthermore, any error in the determination the court makes ‘may

be raised by way of a direct appeal of his criminal case.’ Id.,

at ¶ 10, 786 N.E.2d 1286, citing State ex rel. Jones v. O'Connor

(1999), 84 Ohio St.3d 426, 704 N.E.2d 1223.”

     {¶ 53} Prisoners are not entitled to jail time credit against

a sentence of incarceration for any period of incarceration that

arises from facts separate and apart from those upon which their
                                                                  16

 sentence is based.    State v. Logan (1991), 71 Ohio App.3d 292;

State v. Redman, Ross App. No. 00CA2556, 2001-Ohio-2679; State

v. Klein, Hamilton App. No. C-040176, C-040224, 2005-Ohio-1761.

     {¶ 54} Defendant was charged with the offense of vandalism by

indictment filed on March 9, 2009 in Case No. 09CR0204.   An arrest

warrant was issued on that indictment and served on Defendant on

March 10, 2009.   At that time, Defendant was being held in jail

without bond on unrelated capital murder charges in Case No.

08-CR-523.    Throughout the pendency of this vandalism case,

Defendant continued to be held in jail on both the unrelated capital

murder charges in Case No. 08-CR-523, and also on the $2,500 cash

or surety bond in the vandalism case that Defendant did not post.

     {¶ 55} At the sentencing hearing on April 26, 2010, the trial

court indicated that Defendant would receive credit for any time

he is entitled to.    The court granted the parties until April 30,

2010, to submit memoranda on the amount of jail time credit

Defendant should receive.    On April 27, 2010, Defendant filed a

memo requesting 414 days of jail time credit for the time Defendant

spent in jail awaiting trial on this vandalism charge, from

indictment to date of conviction.       In its judgment entry of

conviction, the trial court awarded Defendant jail time credit

only from April 26, 2010, the date of his conviction, until his

conveyance to the penitentiary.      The trial court did not give
                                                                          17

Defendant any credit for the time he spent in jail prior to trial

on this vandalism charge.

      {¶ 56} In arguing that the trial court erred in failing to award

him 414 days of jail time credit for the time he spent in jail

awaiting trial on this vandalism charge, Defendant relies upon

State v. Klein.        That reliance is misplaced, because Klein is

distinguishable.       In Klein, the defendant was held in jail prior

to trial on both a receiving stolen property charge, for which

he did not post bond, and on a parole holder             based solely upon

the same receiving stolen property charge.                  The trial court

refused to give Defendant credit against the sentence imposed on

the receiving stolen property conviction            because, except for one

day, Defendant was at that same time also being held in jail on

the   parole    holder.      Accordingly,     the   trial   court   credited

Defendant for one day of pretrial confinement,               that being the

amount of time that he was held only on the receiving stolen property

charge.

      {¶ 57} The court of appeals reversed the trial court’s decision

to not give the defendant credit for time served when it imposed

the sentence for receiving stolen property.            The court of appeals

concluded      that   the   trial   court’s   finding    was   speculative.

Defendant had not yet been convicted and sentenced for the parole

violation at the time the trial court sentenced him for the
                                                                  18

receiving stolen property conviction, and it could not be known

at that time whether Defendant would be convicted and sentenced

for the parole violation.    The court found the proper approach

was to credit the time served to the crime for which Defendant

was convicted.   Defendant would not then get credit for the same

time against the parole violation, so as to avoid a “double credit.”

      {¶ 58} Unlike in Klein, the other matter upon which Defendant

was   held in jail at the same time he was held on the vandalism

charge, the capital murder charges in Case No. 08-CR-523, do not

arise from the same facts that give rise to the vandalism charge.

 They are separate, unrelated matters.     Even had the vandalism

charge been dismissed, Defendant would continue to be held in jail

on the capital murder charges.       Therefore, because the time

Defendant spent in jail awaiting trial on the capital murder charges

in Case No. 08-CR-523 overlaps the time he spent in jail prior

to trial on this vandalism charge, and does not arise from the

same facts on which his sentence for vandalism is based, Defendant

was not entitled to jail time credit against the sentence imposed

on the vandalism conviction for the time he spent in jail awaiting

trial.

      {¶ 59} Defendant’s third assignment of error is overruled.

The judgment of the trial court will be affirmed.
                                     19

FROELICH, J. And HALL, J., concur.



Copies mailed to:

Andrew R. Picek, Esq.
Keith O’Korn, Esq.
Hon. Douglas M. Rastatter
