[Cite as State v. Hutchinson, 2013-Ohio-5334.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HIGHLAND COUNTY


STATE OF OHIO,                                       :
                                                     :      Case No. 13CA3
        Plaintiff-Appellee,                          :
                                                     :
        vs.                                          :
                                                     :      DECISION AND
CHRISTOPHER HUTCHINSON,                              :      JUDGMENT ENTRY
                                                     :
        Defendant-Appellant.                         :      RELEASED 11/26/2013


                                            APPEARANCES:

Chase R. Carter, Chillicothe, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee.


Hoover, J.


        {¶ 1} This is an appeal from a Highland County Common Pleas Court judgment of

conviction and sentence. Christopher Hutchinson, defendant below and appellant herein, was

convicted by a jury of five counts of breaking and entering under R.C. 2911.13(A), each felonies

of the fifth degree; two counts of receiving stolen property under R.C. 2913.51, each

misdemeanors of the first degree; and one count of theft under R.C. 2913.02(A)(1), a

misdemeanor of the first degree.


        {¶ 2} Appellant assigns the following errors for review:


First Assignment of Error:
Highland App. No. 13CA3                                                                               2


       THERE SHOULD NOT HAVE BEEN AN INSTRUCTION TO THE LESSER

       INCLUDED OFFENSE OF THEFT AS THE DEFENDANT DID NOT

       REQUEST SUCH AN INSTRUCTION AND INSTEAD PRESENTED AN

       "ALL OR NOTHING" DEFENSE.


Second Assignment of Error:


       THE ADMISSIONS OF PHOTOGRAPHS TAKEN BY AN UNMANNED

       CAMERA WERE NOT PROPERLY AUTHENTICATED AS PER OHIO RULE

       OF EVIDENCE 901 AND THAT THE STATE FAILED TO ADEQUATELY

       PROVE CHAIN OF CUSTODY FOR THESE ITEMS BEFORE THEIR

       ADMISSION INTO EVIDENCE.


       {¶ 3} For the reasons that follow, we affirm the judgment of the trial court.


       {¶ 4} The appellant was originally indicted on nine different counts as follows: five

counts of breaking and entering, one count of theft, and three counts of receiving stolen property.

The trial court dismissed one of the counts of receiving stolen property without prejudice. The

remaining eight counts came on for a jury trial in January 2013.


       {¶ 5} During the trial, the appellant's girlfriend, Rose Duffey, testified. Duffey testified

that she and the appellant had broken into a barn located at Millerstown Road in Highland

County and had stolen various items from that barn. On at least five different occasions in

September 2012, appellant had entered the barn. The various items that were stolen were found

at the residence of Duffey and appellant, 4400 Carr Road. Duffey further testified that appellant

had brought things home like a camera and a boat among other items.
Highland App. No. 13CA3                                                                                         3


        {¶ 6} The victims, Anita Foley, Ronald Gossett, and Sharon Gilletly also testified.

Gilletly and her husband controlled1 the barn that was broken into by the appellant. Likewise,

Gilletly and her husband owned the items contained in and around the barn. Gilletly did not

authorize anybody to enter the barn. In addition, Gilletly described the items that were stolen

from their property. Gilletly did not authorize anybody to take the items from their property.

The state attempted to introduce a list of the replacement prices for the stolen items; however,

the trial court excluded the list on the basis of appellant's hearsay objection. Also, no actual

values were given by Gilletly during her testimony.


        {¶ 7} Foley identified the appellant as a man who had turned around in her driveway

prior to the break-in at her home. Foley also established ownership of a Pentax .35 millimeter

camera as her husband's camera. Foley confirmed that she did not give anyone permission to

take the camera.


        {¶ 8} Gossett testified that he was the owner of a 14 foot aluminum boat and a two-

wheel trailer for the boat. Gossett identified a photograph of the boat and trailer that was taken

during the investigation of the crimes. Gossett informed the jury that he did not give Christopher

Hutchinson or anyone else permission to take his boat.


        {¶ 9} The investigating officer, Dan Croy, testified for the state. Croy searched the

property where appellant was living and found property belonging to the Gilletly, Gossett, and

Foley families. Croy authenticated various photographs depicting the stolen items.


        {¶ 10} Photographs taken by a trail camera were also presented by the state. Duffey

testified that the photographs were all true and accurate depictions of the appellant and that the

1
 The barn was located on property in the name of Inez McCane Bowman, the mother of Sharon Gilletly. Ms.
Gilletly testified that the property was in her mother's estate and that she was the executrix of the estate.
Highland App. No. 13CA3                                                                               4


photographs depicted the property appeared as it appeared during the times of the thefts. The

dates were listed on the bottom of the photographs. Doug Henson also testified regarding the

photographs. Henson testified that the camera was in working order. Henson testified that he

took the SB card out of the deer camera and viewed each picture on a television. Henson further

testified that each printed picture appeared the same as they appeared on the television.


       {¶ 11} After the state completed its presentation of the evidence, the state moved to

admit the photographs and the valuation of the Gilletly's property. The appellant's counsel

objected to the admission of the valuation of the Gilletly's property on the basis of hearsay. The

trial court sustained the objection. The trial court next deemed the photographs taken by the deer

camera admissible. Therefore, the valuation was not admissible; however, the photographs taken

by the deer camera were admissible.


       {¶ 12} The appellant's attorney then made a motion for acquittal pursuant to Crim.R. 29.

The basis for this motion was that values had not been established as to any of the property taken

from the barn. Appellant claimed that the value was not established for count six, the theft from

the Gilletly property. On the other hand, the state argued that the jury could find a misdemeanor

theft rather than a felony theft. In addition, the state contended that common sense could be

applied by the jury regarding the values of the stolen property and that dismissal was not

warranted. The trial court denied the appellant's Rule 29 motion for acquittal. The trial court

sent count six theft to the jury without any additional finding of value. It was reduced to a first

degree misdemeanor as charged.


       {¶ 13} Prior to charging the jury, the trial court informed the attorneys for the state and

the appellant that it would be removing from the verdict form and the instruction on count six the
Highland App. No. 13CA3                                                                               5


additional finding as to value. The trial court asked the attorneys, "Now, are there any objections

to the jury instructions once I make those revisions? Anything from the State? * * * Mr.

Curren?* * * Any request of additional instructions?"


       {¶ 14} We note that the appellant's attorney answered the trial court, "No, Your Honor."

At no time were any objections made regarding the jury instructions. Even after taking a brief

recess, the trial court came back on the record and stated, "The Court has made revisions to the

jury instructions and Form 6 has been changed to delete the additional finding and just reflect a

guilty or not guilty verdict. All right, is there anything further from counsel before we bring the

jury back in?" Both the state and appellant's attorney answered, "No, Your Honor."


       {¶ 15} In his first assignment of error, appellant asserts that a defendant in a criminal

trial, as a matter of trial strategy, has a right to present an “all or nothing” defense and refuse any

lesser included offense instructions. The appellant claims that a conflict or ambiguity exists in

Ohio regarding whether a trial court has a mandatory duty to instruct on lesser included offenses

or if a defendant has the right to refuse such instructions. The appellant relies upon State v.

Clayton, 62 Ohio St.2d 45, 47, 402 N.E.2d 1189 (1980), for his argument that a defendant

maintains the right to refuse such instructions.


       {¶ 16} This Court rejected the argument that defendants have the right to prohibit the

court to instruct the jury on lesser included offenses. This court stated in State v. Seymour, 4th

Dist. Pickaway No. 90CA38, 1993 WL 472875, *17 (Nov. 9, 1993):


       No statute or rule prohibits a trial court from sua sponte issuing a lesser included

       instruction. Indeed, it has been held that a trial court must fully and completely
Highland App. No. 13CA3                                                                          6


       give the jury all relevant and necessary instructions. State v. Comen (1990), 50

       Ohio St.3d 206 [553 N.E.2d 640], paragraph two of the syllabus; R.C. 2945.11.


       ***


       [W]e do not believe the Clayton footnote prevents the trial court from charging

       the jury on the lesser included offense of voluntary manslaughter. Although the

       Clayton footnote mentioned that defendants have a right to waive jury instructions

       on lesser included offenses, the footnote did not say defendants have a right to

       prevent such instructions. We note Clayton did not involve a situation where the

       defendant wished to prevent a jury instruction on a lesser included offense. The

       footnote appeared in a discussion of whether the court committed plain error

       when it failed to instruct the jury on a lesser included offense absent a request

       from the defendant for such an instruction.


       {¶ 17} The case State v. Kuhn, 4th Dist. Meigs No. 94CA24, 1996 WL 140197 (Mar. 25,

1996), is similar to the case before us now. The appellant in Kuhn had been charged with

felonious assault.


       [A]ppellant's trial strategy was to seek "a total acquittal" on the criminal act for

       which he was charged. To that end, appellant requested that the jury be

       instructed only on the greater offense of felonious assault and the issue self

       defense. He also expressly noted his objection to the use of an aggravated assault

       instruction.


Kuhn at *3. Appellant argued that he had the authority to waive a jury instruction on a lesser

included offense and require that it not be given. Id. This Court held that although the appellant
Highland App. No. 13CA3                                                                              7


had the authority to waive the reading of an aggravated assault instruction to the jury, the

appellant did not have the authority to prohibit or prevent such a charge from being given. Id. at

*4. Accordingly, we overruled the appellant’s assignment of error.


       {¶ 18} In contrast to the case sub judice, in the Kuhn case, the appellant's attorney

specifically requested that the jury only be instructed on the greater offense; and he expressly

objected to the lesser included offense instruction. In this case, appellant Hutchinson did not

make any specific objections to the jury instructions as given by the trial court. Although we

recognize that the appellant's attorney made the motion for acquittal based upon lack of evidence

on the value of the stolen items, this does not amount to a specific objection to the jury

instructions. Even with specific objections to the lesser included jury instructions, this Court

refused to find error in Kuhn. Likewise, we will not find error in this case based on the trial

court giving the lesser included offense instruction to the jury.


       {¶ 19} Accordingly, based upon the foregoing reasons, we overrule appellant's first

assignment of error.


       {¶ 20} In appellant's second assignment of error, he asserts that the trial court erred in

admitting photographic evidence generated by an unattended surveillance camera without

establishing chain of custody or authentication. The appellant contends that the only person to

testify to the authentication of the photographs was Doug Henson. The appellant claims that

Henson was not present when the pictures were taken by the camera. He further claims that the

photographs may have been substituted, altered or tampered with since the pictures were

selectively printed. At trial, appellant argued that a proper foundation had not been laid to show
Highland App. No. 13CA3                                                                        8


that the camera was in proper working order; and appellant claimed that a chain of custody

problem existed.


       {¶ 21} We review the admissibility of photographs under the abuse of discretion

standard of review. State v. Valentine, 4th Dist. Washington No. 94CA06, 1995 WL 249879, *3

(Apr. 26, 1995).


       Admission or exclusion of photographs is left to the sound discretion of the trial

       court. Id.; State v. Slagle (1992), 65 Ohio St.3d 597, 601. An abuse of discretion

       involves more than an error of judgment; it connotes an attitude on the part of the

       court that is unreasonable, unconscionable, or arbitrary. State v. Lessin (1993), 67

       Ohio St.3d 487, 494; Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd.

       (1992), 63 Ohio St.3d 498, 506; Wilmington Steel Products, Inc. v. Cleve. Elec.

       Illum. Co. (1991), 60 Ohio St.3d 120, 122. When applying the abuse of discretion

       standard, a reviewing court is not free to merely substitute its judgment for that of

       the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v.

       Matthews (1990), 53 Ohio St.3d 161, 169.


Id.


       {¶ 22} "A foundation for admissibility of photographs is laid by evidence

establishing that the photographs are an accurate and faithful representation of the scene

depicted." State v. King, 4th Dist. Ross No. 1553, 1990 WL 9943, *3 (Feb. 6, 1990)

citing State v. Woodards, 6 Ohio St.2d 14, 215 N.E.2d 568 (1966). In this instance, the

state presented photographs (exhibits 6 through 19, 23, and 24) that were taken by the

unmanned deer camera.
Highland App. No. 13CA3                                                                         9


       {¶ 23} After hearing arguments from the state and the appellant regarding the

photographs, the trial court stated the following:


       THE COURT: Okay. Well, that objection is overruled. The test of

       admissibility is whether the photograph was represented, a true and

       accurate photograph of the scene as it was depicted that day. Ms. Duffey

       did testify and do that. Had she not been available to do that, perhaps it

       would have been a different issue.


       As far as the stuff about who developed them and so forth, that really

       doesn't matter. The camera was apparently in working order, according to

       Mr. Henson. There is no indication it was not. So, now that objection as

       to the photographs taken by the trail camera will be overruled.


       {¶ 24} With respect to authentication of the photographs, Duffey had testified

regarding exhibits 6 through 19, 23 and 24. She identified the photograph of the red

truck driven by appellant as a true and accurate depiction of the truck. She also identified

the photographs of herself and appellant as true and accurate depictions of the way they

appeared on the Millerstown Road property. Duffey testified that a photograph showing

appellant and herself taking a trailer off the Millerstown Road property was also a true

and accurate depiction of the way they appeared. Duffey even identified a photograph

with appellant's tattoo on the back of his leg at the property as true and accurate depiction

of the way appellant appeared.


       {¶ 25} As to any chain of custody concerns, Gilletly testified that she and her

husband had decided to put up a trail camera because items were coming up missing.
Highland App. No. 13CA3                                                                     10


Doug Henson, a "hunting buddy" of Mr. Gilletly, actually put up the camera. Ms.

Gilletly explained the contents of the photographs taken by the trail camera to the jury.

Henson testified regarding his actions with respect to the placement of the camera.

Henson testified to the type camera and how it works. He explained that the date and

time was checked with his cell phone when he first set up the camera in the hollowed out

tree on the Millerstown Road property. Henson further testified about what he did with

the camera after it was taken down from the tree. Henson opened the camera, removed

the SB card, took it inside, and plugged it into his television to view the photographs.

Henson verified that the photographs that the state had introduced were true and accurate

depictions of the images he viewed on his television from the SB card.


       {¶ 26} In light of the testimony of Duffey, Gilletly, and Henson, we cannot find

that the trial court abused its discretion when admitting the photographs. Therefore, we

overrule appellant's second assignment of error.


                                                                JUDGMENT AFFIRMED.
Highland App. No. 13CA3                                                                          11


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Highland County
Common Pleas Court, to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.


                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
