[Cite as State v. Jackson, 2020-Ohio-2677.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              MADISON COUNTY




 STATE OF OHIO,                                     :

        Appellee,                                   :      CASE NO. CA2019-03-006

                                                    :           OPINION
     - vs -                                                      4/27/2020
                                                    :

 TEVIN JACKSON,                                     :

        Appellant.                                  :




      CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                           Case No. CRI20180011


Stephen J. Pronai, Madison County Prosecuting Attorney, Nicholas A. Adkins, 59 North
Main Street, London, Ohio 43140, for appellee

Rion, Rion & Rion, L.P.A., Inc., Jon Paul Rion, Catherine H. Breault, Bradley Anderson, 130
W. Second Street, Suite 2150, Dayton, Ohio 45402, for appellant



        HENDRICKSON, P.J.

        {¶ 1} Appellant, Tevin Jackson, appeals the denial of his motion to suppress and

his convictions in the Madison County Court of Common Pleas for murder, felonious

assault, aggravated burglary, and having weapons while under disability. For the reasons

detailed below, we affirm the trial court's decisions.
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         {¶ 2} On February 15, 2018, appellant was indicted by the Grand Jury of Madison

County for aggravated murder, murder, attempted murder, felonious assault, aggravated

burglary and having weapons while under disability. Aside from the weapons while under

disability charge, all counts of the indictment included a firearm specification pursuant to

R.C. 2941.145(A).

         {¶ 3} The charges of the indictment stemmed from events that occurred on January

22, 2018 in Madison County. That evening, appellant and a friend, Justin Coffey, went to

the apartment of William Benson and Zachary Edmond in London, Ohio to collect money

Benson owed to Coffey for marijuana. Appellant and Coffey entered the apartment and a

struggle ensued between the four individuals. After several gunshots were fired inside the

apartment, Benson and appellant moved the altercation to the front yard, where a

surveillance camera recorded the remainder of the incident. The surveillance footage

shows appellant and Benson struggling on the ground, followed by appellant shooting

Benson in the chest twice before running away. As a result of the encounter, all four

individuals suffered gunshot wounds. Benson and Coffey ultimately died as a result of their

wounds, while appellant and Edmond were successfully treated at different hospitals.

         {¶ 4} After retreating from the apartment, appellant met his cousin at a nearby

motel.    Appellant's cousin drove appellant to the Springfield Regional Medical Center

("SRMC"), a hospital over thirty minutes from the apartment and outside Madison County,

despite having access to a hospital only five minutes from the apartment. When appellant

arrived at SRMC, he informed the hospital staff that he had been shot. At that point, staff

notified the Springfield Police Department that a gunshot victim had arrived at the hospital.

In response, officers with the Springfield Police Department were dispatched to SRMC.

When the officers arrived at the hospital, appellant indicated that he had been shot by a

person he did not know while sitting in his car on the southside of Springfield. While in

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appellant's room, the officers noticed bloody clothing on the floor, including a bloody t-shirt

and pair of jeans, which was collected and subsequently tested for DNA.

         {¶ 5} That same evening, while appellant was in the hospital, officers with the

London Police Department became aware of the altercation that had occurred at the

apartment and began investigating Coffey's injuries, Edmond's injuries, and Benson's

death.

         {¶ 6} Thereafter, appellant was transferred to Miami Valley Hospital in Dayton,

Ohio, which informed the London Police Department that appellant was being treated at the

hospital. The London Police Department then notified the Madison County Sheriff's Office

that appellant was located at Miami Valley Hospital, and a lieutenant with the sheriff's office

went to the hospital to interview appellant. During that interview, appellant reiterated that

he was shot while sitting in his car with an individual he did not know. According to

appellant, the shooting occurred on Euclid Avenue in Springfield.

         {¶ 7} As a result of the investigation into the events that occurred at the apartment,

appellant was indicted for the aggravated murder of Benson, murder of Coffey, attempted

murder of Edmond, felonious assault of Edmond, and for committing aggravated burglary

at the apartment.

         {¶ 8} In June 2018, appellant moved the trial court to suppress certain evidence

obtained during the investigation. In July 2018, appellant amended his motion to suppress.

Relevant to this appeal, appellant argued in his amended motion that the trial court should

suppress the clothing evidence seized by the Springfield Police Department without a

search warrant, including appellant's belt, pants, and shirts, for the reasons that appellant

had a Fourth Amendment possessory right in the clothing and because the Springfield

Police Department illegally obtained the clothes, and thereby violated appellant's rights.



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        {¶ 9} After a hearing, the trial court denied appellant's motion. With regard to the

clothing evidence seized by the Springfield Police Department, the trial court found that

appellant did not retain a reasonable expectation of privacy in his clothing, and therefore,

his Fourth Amendment rights were not violated.

        {¶ 10} Three days before the trial court denied appellant's motion, appellant filed a

supplemental motion to suppress relating to the search and seizure of appellant's cellular

service location information. On October 29, 2018, the trial court held a hearing regarding

appellant's supplemental motion. Additional discovery was completed and the parties

stipulated to the admission of the additional evidence and renewed their prior arguments.

The trial court determined its analysis was not altered by the newly introduced evidence,

and denied the motion in each and every particular.

        {¶ 11} Appellant elected to have the weapons while under disability charge tried to

the trial court, and the remaining charges were tried to the jury. After a three-day jury trial,

the jury returned not guilty verdicts for the aggravated murder and attempted murder

charges, but found appellant guilty of murder, felonious assault, and aggravated burglary.

The jury further found appellant guilty of a firearm specification related to the felonious

assault charge. The trial court also found appellant guilty of having weapons while under

disability.   As a result of the guilty verdicts, the trial court sentenced appellant to an

aggregate sentence of 37 years to life.

        {¶ 12} Appellant now appeals, raising three assignments of error for our review. For

the ease of discussion, we will address appellant's assignments of error out of order.

        {¶ 13} Assignment of Error No. 3:

        {¶ 14} THE TRIAL COURT ERRORED [sic] IN OVERRULING DEFENDANT'S

MOTION TO SUPPRESS REGARDING THE CLOTHING COLLECTED AND SEIZED

FROM THE BODY OF MR. JACKSON BY THE SPRINGFIELD POLICE DEPARTMENT,

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WHICH INTERFERED WITH MR. JACKSON'S CONSTITUTIONALLY PROTECTED

POSSESSORY INTEREST.

       {¶ 15} In his third assignment of error, appellant argues the trial court erred by

denying his motion to suppress evidence obtained from the warrantless seizure of his

bloody clothing from the hospital.

       {¶ 16} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. When considering

a motion to suppress, the trial court assumes the role of the trier of fact and is therefore in

the best position to resolve factual questions and evaluate the credibility of witnesses. Id.

Consequently, an appellate court must accept the trial court's findings of fact if they are

supported by competent, credible evidence. Id. Accepting these facts as true, the appellate

court must then independently determine, as a matter of law, and without deference to the

trial court's conclusions, whether the trial court applied the proper legal standard. Id.

       {¶ 17} In his motion to suppress, appellant argued the trial court should suppress the

clothing evidence seized by the Springfield Police Department from SRMC because he

maintained a constitutionally protected possessory interest in his clothing at the time of the

seizure, and therefore, the seizure was in violation of his Fourth Amendment rights. We

disagree.

       {¶ 18} The Fourth Amendment to the United States Constitution guarantees "[t]he

right of the people to be secure in their * * * effects * * * against unreasonable searches and

seizures."   According to the United States Supreme Court, to challenge a seizure, a

defendant need only establish that the seizure interfered with his constitutionally protected

possessory interests. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652

(1984).



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       {¶ 19} Warrantless seizures of personal property are generally considered

unreasonable under the Fourth Amendment unless there is probable cause to believe the

property is or contains contraband or evidence of a crime and the seizure falls within an

established exception to the warrant requirement. United States v. Place, 462 U.S. 696,

701, 103 S. Ct. 2637 (1983). One such exception is the plain view doctrine. State v.

Buzzard, 112 Ohio St. 3d 451, ¶ 16. The plain view doctrine represents the requirement

that an individual must protect his or her privacy, and should an officer observe items in

plain view from a place where the officer is entitled to be, no warrant is required. Id. Thus,

it is well established that pursuant to the plain view doctrine, a police officer lawfully on a

person's property may seize evidence in plain view without a warrant. State v. Young, 12th

Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, ¶ 28.

       {¶ 20} The plain view doctrine authorizes the warrantless seizure of evidence if the

initial intrusion leading to the discovery of the evidence was lawful and the incriminating or

illegal nature of the items was immediately apparent. State v. Simmons, 12th Dist. Butler

No. CA2012-11-229, 2013-Ohio-5088, ¶ 18. The "immediately apparent" requirement is

satisfied when police have probable cause to associate an object with criminal activity.

Young at ¶ 29. The requisite probable cause may arise from the character of the property

itself or the circumstances in which it is discovered, and police officers may rely on their

specialized knowledge, training, and experience in establishing probable cause to identify

items as contraband. Id.

       {¶ 21} At the hearing on appellant's motion to suppress, the state presented

testimony from the officer with the Springfield Police Department who initially interviewed

appellant at SRMC. The officer testified that on January 22, 2018, he and a fellow officer

were dispatched to SRMC regarding a gunshot victim who had arrived at the hospital. Upon

arriving at SRMC, the officers were directed to appellant by the hospital staff. When the

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officers initially arrived, appellant was in one of the hospital trauma rooms surrounded by

medical staff. At some point, the officer observed appellant's clothing in a pile on the floor.

The clothes included a pair of blue jeans, a white t-shirt, and a long-sleeved shirt. According

to the officer, the clothes were bloody and were in a pile after staff had cut them off

appellant. After observing the bloody clothes, the officer put the clothes in a plastic bag

from SRMC, as the blood would have soaked through the paper bags typically utilized by

the police department. Those clothes were then returned to the police department and the

officer completed a property receipt.

       {¶ 22} The officer also testified that appellant informed the officer he was sitting in

his parked vehicle "somewhere on the south side" of the City of Springfield, when an

unknown individual came up, shot appellant, and ran away. As a result of appellant's

statement, the officer treated appellant as a gunshot victim, and confirmed at the hearing

that he had no reason to believe appellant was anything other than a victim.

       {¶ 23} The state also presented testimony from a nurse and clinical educator in

SRMC's emergency room. The nurse testified that in her role as a clinical educator, she

provides education to the staff of SRMC and is familiar with the guidelines and procedures

at the hospital. The nurse then detailed SRMC's guidelines on how to care for a patient

with a gunshot wound. According to the nurse, when treating a gunshot wound, it is the

hospital's policy to "[r]emove the patient's clothing to expose the wound and allow for a

head-to-toe assessment. Take care when removing the clothing to prevent exacerbating

the injury and causing additional pain." The nurse continued, and indicated that SRMC's

staff is directed not to leave any removed clothing unattended to preserve the chain of

custody. Instead, the staff is directed to place all of the patient's belongings into a paper

bag. The hospital's policy further directs its staff to notify local law enforcement agencies

of the gunshot wound patient, if they are not already aware, and to follow the chain of

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custody when turning over potential evidence to law enforcement personnel. The nurse

further testified that SRMC's staff, including its emergency room staff, is prohibited from

giving the patient's personal belongings to anyone other than a law enforcement officer.

According to the nurse, when there is a gunshot wound patient, the patient's clothing is

usually collected by law enforcement, but if law enforcement does not collect the clothing,

it is returned to the patient or the family.

       {¶ 24} The nurse further testified SRMC's staff is told to follow the guidelines and

procedures, and if police officers arrive at the hospital in response to a gunshot wound

patient, the emergency room staff is supposed to follow the policy and give the officers the

clothing. The nurse indicated that it is not unusual for the officers to collect clothing

themselves, and that the hospital allows officers to do so.         However, the nurse also

confirmed that SRMC is not responsible for the patient's property, nor does it have any

possessory right to the patient's property.

       {¶ 25} After considering the evidence presented at the hearing, we find appellant's

Fourth Amendment rights were not violated when the officers seized his bloody clothing off

the floor at SRMC. Various federal courts have recognized that a hospital patient retains a

possessory interest in his or her clothing. See, e.g., United States v. Davis, 690 F. 3d 226,

234-35 (4th Cir.2012); Jones v. State, 648 So. 2d 669, 675 (Fla.1995); United States v.

Neely, 345 F.3d 366, 369 (5th Cir.2003). In the case at bar, the record reflects that although

the clothing at issue was on the floor, cut, and bloody, appellant never relinquished his

possessory interest in the clothing while at SRMC. Rather, pursuant to SRMC's policy, if

the clothing had not been collected by law enforcement officers, it would have been returned

to appellant or his family. This is because, as the nurse testified, the clothing did not belong

to SRMC and the hospital did not retain any possessory right to the patient's property.



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       {¶ 26} However, even if appellant maintained a possessory interest in his clothing at

the time of the seizure, we find the warrantless seizure was reasonable under the Fourth

Amendment pursuant to the plain view doctrine, an established exception to the warrant

requirement. According to the record, the officers were at the hospital on official police

business, as they were dispatched to SRMC when appellant, an alleged gunshot victim,

presented himself at the hospital. This dispatch was in accordance with SRMC's policy to

notify local law enforcement agencies of any gunshot wound patients. Thus, the record is

clear that the officers were lawfully in appellant's room when they observed the bloody

clothing in plain view on the floor. Additionally, it is apparent from the record that the officers

had probable cause to associate appellant's clothing with criminal activity. Although the

officers initially believed appellant was a victim at the time of the seizure, the clothing

remained evidence of the gunshot-related crime the officers were called to investigate.

Thus, regardless of appellant's initial status as the victim, we find it is immaterial to the plain

view analysis that the clothing did not immediately incriminate appellant as the perpetrator

of any crime. Rather, due to the existence of blood on the clothing, as well as appellant's

presence at SRMC as a gunshot victim and his allegation that he was shot by an unknown

individual in his car, the clothing was clearly evidence of criminal activity. As a result, we

find the seizure of appellant's clothing from the SRMC emergency room was lawful and did

not violate appellant's Fourth Amendment rights.

       {¶ 27} For these reasons, the trial court did not err by denying appellant's motion to

suppress evidence obtained from the warrantless seizure of his bloody clothing from SRMC.

Accordingly, appellant's third assignment of error is overruled.

       {¶ 28} Assignment of Error No. 1:

       {¶ 29} THE TRIAL COURT DENIED MR. JACKSON HIS CONSTITUTIONAL RIGHT

TO A FAIR TRIAL BY DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.

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       {¶ 30} Appellant also argues the trial court abused its discretion by denying his

motion for a mistrial.

       {¶ 31} "A mistrial should not be ordered in a criminal case merely because some

error or irregularity has intervened[.]". State v. Reynolds, 49 Ohio App.3d 27, 33 (2d Dist.

1988). The granting of a mistrial is necessary only when a fair trial is no longer possible.

State v. Franklin, 62 Ohio St. 3d 118, 127 (1991); State v. Treesh, 90 Ohio St. 3d 460, 480

(2001). When reviewed by the appellate court, we should examine the climate and conduct

of the entire trial, and grant "great deference to the trial court's discretion * * * in recognition

of the fact that the trial judge is in the best position to determine whether the situation in his

courtroom warrants the declaration of a mistrial." State v. Glover, 35 Ohio St. 3d 18, 19,

(1988).

       {¶ 32} In this case, appellant orally moved for a mistrial during voir dire after the

prosecutor questioned a prospective juror's ability to determine a person's credibility. It is

well settled that the trial judge has discretion over the scope, length, and manner of voir

dire. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 40; State v. Getsy, 84 Ohio

St.3d 180, 190, 1998-Ohio-533. As such, we will not find prejudicial error in a trial court's

decision to conduct voir dire or how the voir dire is conducted unless appellant can show "a

clear abuse of discretion." State v. Cornwell, 86 Ohio St.3d 560, 565, 1999-Ohio-125.

       {¶ 33} The record reflects appellant moved for a mistrial after the prosecutor made

the following statements to prospective juror number seven:

               What if a person has an incentive to be dishonest. Would you
               consider that? They've got skin in the game. And maybe, you
               know, it's a kid and they're being accused of doing something
               wrong. And so if they're truthful, they're going to get grounded.
               You know, do you consider that, that there could be a
               consequence if they tell the truth?




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       {¶ 34} Defense counsel objected to the question. After a sidebar, the trial court

sustained the objection and instructed the prosecutor to refrain from using the word

"accused." At that time, defense counsel indicated "there would be no further action

needed." The prosecutor then resumed his questioning of prospective juror number seven

and stated,

              [W]e were talking about a little kid. And let's say you're
              investigating whether a cookie has been -- a cookie's missing
              off the counter, right, and you're trying to figure out what
              happened and you start questioning the kids in that house.
              When you do that, you know, do you consider whether they're
              going to get in trouble if they tell the truth?

       {¶ 35} Defense counsel objected to the rephrased question and moved for a mistrial.

Outside the presence of the venire, the trial court discussed the objection with counsel.

During the discussion, defense counsel asserted the prosecutor's line of questioning infers

that appellant is to be judged differently than any other witness, solely because he is

accused of a crime, and that such questioning defies the concept of due process. In

response, the prosecutor claimed the questions were unrelated to the testimony of

appellant, but were intended to focus on ways to judge a person's credibility, including

"whether there is a reason [for the person] to be deceptive." After considering counsel's

arguments, the trial court determined there is a reasonable amount of latitude when dealing

with issues related to the credibility of witnesses and the motivations that they may have.

The trial court then denied the motion for a mistrial, and indicated "there are specific

instructions that will be given that will clearly identify to the jury the manner in which they

are to judge [appellant's] testimony, if he chooses the stand." The trial court further noted,

"if he does not take the stand, the jury will receive instructions that will appropriately indicate

that they may not consider that for any purpose."




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       {¶ 36} On appeal, appellant argues the prosecutor's statements put appellant's right

to remain silent in question before the jury was impaneled and implied that appellant's

testimony was to be judged differently than any other witness because he is accused of a

crime. Thus, appellant concludes his testimony in the defense's case in chief was tainted,

and that the jury's perception of appellant was skewed from the voir dire.

       {¶ 37} After reviewing the record, we do not find the trial court erred in denying

appellant's motion for a mistrial. That is, it was within the trial court's discretion to permit

questions regarding a prospective juror's ability to determine a person's credibility, and to

allow the prosecutor to ask whether she would consider a person's motive or incentive to

be truthful in making that determination. Moreover, there is no indication that either set of

statements cited by appellant denied him of a fair trial by an impartial jury. As to the first

set of statements, the trial court sustained defense counsel's objection and later instructed

the jury not to speculate or draw any inference on the truth of any question that was not

answered. The trial court further instructed the jury that it may not consider appellant's

indictment for any purposes. These instructions negated any inferences that could have

been drawn from appellant's status as an "accused." With regard to the second set of

statements, the prosecutor's comments were generic in that they did not include the words

defendant or witness, nor did they explicitly or implicitly make specific reference to appellant

or his decision to testify. Consequently, we do not agree that the statements led the jury to

infer that appellant was to be judged differently than any other witness.          Rather, the

statements inquired generally into the methods of determining a person's credibility and

asked whether the prospective juror would consider a person's incentive to lie.

       {¶ 38} We are also unpersuaded by appellant's argument that the prosecutor's

statements put appellant's right to remain silent in question before the jury was impaneled

or that the statements created a presumption that appellant was going to testify, and that if

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he did not, his silence would be held against him. As discussed above, we find the

comments by the prosecutor were general in nature, and did not make specific reference,

whether expressed or implied, to appellant or his decision to testify. Moreover, when

discussing the objections, the trial court informed counsel that it would give specific

instructions to the jury regardless of whether appellant elected to take the stand. Thus,

appellant was not compelled to take the stand due to the prosecutor's comments.

Notwithstanding his ability to remain silent, appellant testified on his own behalf, which

prompted the trial court to instruct the jury regarding his testimony. Specifically, the trial

court advised the jury that it must consider the credibility of the witnesses, including

appellant, and "to apply the tests of truthfulness which you apply in your daily lives." The

trial court indicated those tests included the witness's "intelligence, interest, and bias, if any,

together with all of the facts and circumstances surrounding the testimony." The trial court

further instructed that appellant's testimony was to be weighed "by the same rules that apply

to other witnesses." The jury is presumed to follow the instructions of the trial court. State

v. Hancock, 12th Dist. Warren No. CA2007-03-042, 2008-Ohio-5419, ¶ 22, citing State v.

Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 147. Thus, the jury is presumed to have

considered and weighed appellant's testimony and credibility under the same standard as

other witnesses.

       {¶ 39} Given the context of the statements and the trial court's instructions to the

jury, appellant cannot show any prejudice arising from the prosecutor's statements during

voir dire. As a result, we find the trial court did not abuse its discretion in denying appellant's

motion for a mistrial. Appellant's first assignment of error is therefore overruled.

       {¶ 40} Assignment of Error No. 2:

       {¶ 41} THE TRIAL COURT ERRORED [sic] IN OVERRULING DEFENDANT'S

OBJECTION TO THE ADMISSABILITY OF STATE'S EXHIBIT 2.

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       {¶ 42} In his second assignment of error, appellant contends the trial court erred in

admitting State's Exhibit 2, as the exhibit did not meet the threshold requirements of Evid.R.

901 and lacked any chain of custody.

       {¶ 43} A trial court has broad discretion in the admission and the exclusion of

evidence and unless it clearly abused its discretion and the appellant is materially

prejudiced thereby, "an appellate court should not disturb the decision of the trial court."

State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, ¶ 9, citing State v.

Finnerty, 45 Ohio St.3d 104, 109 (1989). An abuse of discretion is more than an error of

law or judgment. Rather, it suggests the "trial court's decision was unreasonable, arbitrary

or unconscionable." State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-

6557, ¶ 8. "A review under the abuse-of-discretion standard is a deferential review." State

v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.

       {¶ 44} Appellant initially argues the state failed to sufficiently authenticate State's

Exhibit 2, the surveillance video of the incident. "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. The

"threshold requirement for authentication of evidence is low and does not require conclusive

proof of authenticity." State v. Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-

5840, ¶ 65. Rather, "the state only needs to demonstrate a 'reasonable likelihood' that the

evidence is authentic." Id., quoting State v. Thomas, 12th Dist. Warren No. CA2010-10-

099, 2012-Ohio-2430, ¶ 15. Photographic and video evidence is generally authenticated in

two ways. Pertinent to this case, a video may be authenticated by having a person with

knowledge state that the video represented a "fair and accurate depiction of the actual item"

at the time the video was taken. Id. at ¶ 66, citing Evid.R. 901(B)(1).



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      {¶ 45} After reviewing the record, we find the state sufficiently authenticated State's

Exhibit 2. At trial, the state presented testimony from Edmond regarding the surveillance

system and the footage contained in Exhibit 2.         Edmond testified he attached the

surveillance camera to the front door of the apartment two months before the incident

occurred.   According to Edmond, the camera was screwed onto the corner of the

apartment's door and was activated by a motion sensor. At the time of the incident, the

camera was programmed to record for 30 seconds after being activated by motion. Edmond

indicated the videos are accessible through his phone, include video and audio, and are

date and time stamped. Edmond also testified the surveillance camera was working on

January 22, 2018 and that he did not make any deletions from the video of the incident.

Edmond stated he accessed the recordings from January 22, 2018, confirmed that the

recording included the incident that occurred at the apartment, and provided the audio and

video to law enforcement. At that time, the state handed Edmond Exhibit 2, which he

identified as the surveillance footage of the incident filmed outside his apartment. Edmond

then testified that he had reviewed the recordings of Exhibit 2 and confirmed that they are

a true and accurate depiction of the events from that evening.

      {¶ 46} On cross-examination, defense counsel introduced Defendant's Exhibit A,

which counsel described as "the complete recording provided that would include, I assume,

all of what's contained in State's Exhibit 2, but maybe some additional video that was also

provided[.]" After review, it appears Defendant's Exhibit A includes the footage contained

in State's Exhibit 2, in addition to footage recorded on January 22, 2018 before the incident

occurred. After Edmond reviewed Defendant's Exhibit A, he confirmed that it was a fair and

accurate account of the surveillance video he gave to the police. Defense counsel also

relied upon Defendant's Exhibit A during the direct examination of appellant. During direct

examination, appellant testified the video was "consistent with everything that happened

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out front[,]" and proceeded to narrate the surveillance footage in an attempt to describe the

events that occurred outside of the apartment. Appellant further testified there were no

gaps in the recordings and that they included "everything that happened." Defendant's

Exhibit A was admitted without objection.

       {¶ 47} After considering the above, we find that appellant waived any objection to

the admission of State's Exhibit 2 by relying on the same video footage in its case-in-chief

and cross-examination of Edmond, as well as by admitting an exhibit containing the same

video footage into evidence. Notwithstanding defense counsel's admission of the same

surveillance video, we further find Edmond's testimony sufficiently authenticated State's

Exhibit 2, as he testified the video was what it purported to be, i.e., a true and accurate

depiction of the events that occurred outside the apartment that evening. Furthermore,

there is no evidence in the record which suggests the video was inaccurate. Rather, the

record reflects both Edmond and appellant testified the surveillance video accurately

depicted the events that took place on January 22, 2018. Accordingly, we find the state

sufficiently authenticated State's Exhibit 2.

       {¶ 48} Next, appellant argues that the state failed to prove chain of custody regarding

Exhibit 2. "A chain of custody is part of the authentication and identification requirement for

the admission of evidence under Evid.R. 901." State v. Glover, 12th Dist. Brown No.

CA2015-01-003, 2015-Ohio-3707, ¶ 30, citing State v. Rigdon, 12th Dist. Warren No.

CA2006-05-064, 2007-Ohio-2843, ¶ 14, citing State v. Brown, 107 Ohio App.3d 194, 200,

(3d Dist.1995). The State bears the burden of establishing a chain of custody and is required

only to "'establish that it is reasonably certain that substitution, alteration, or tampering did

not occur.'" Id., citing State v. Miller, 12th Dist. Preble No. CA2002-02-004, 2002-Ohio-

6109, ¶ 18, quoting State v. Blevins, 36 Ohio App.3d 147, 150 (10th Dist.1987). It is the

trier of fact's duty to determine whether a break in the chain of custody exists and whether

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any break weighs against conviction. Id. ("The trier of fact has the task of determining

whether a break in the chain of custody exists."), citing State v. Blumensaadt, 11th Dist.

Lake No. 2000-L-107, 2001-Ohio-4317, *12.            "Yet, even then, any deficiencies or

irregularities in the chain of custody generally go to the weight of the evidence, not its

admissibility." Glover at ¶ 30, citing State v. Steele, 12th Dist. Butler No. CA2003-11-276,

2005-Ohio-943, ¶ 114.

       {¶ 49} We find the testimony presented at trial sufficiently established a chain of

custody and that the state met its burden of proving, with reasonable certainty, that

substitution, alteration, or tampering of the video did not occur. As discussed above,

Edmond testified at trial that he accessed the recordings from January 22, 2018 and

provided the recorded audio and video to law enforcement. Edmond also stated that he did

not alter the footage of the incident in any way prior to providing the footage to law

enforcement officers. Additional testimony at trial revealed the video footage was initially

secured by a special agent with the Bureau of Criminal Investigation ("BCI") and that the

footage was ultimately "pulled off of the phone" by an analyst at BCI and provided to the

London Police Department. The lead detective working on the case indicated that after

receiving the video, he saved the recordings and submitted them to Ohio Organized Crime

for clarification. After the recordings were clarified, they were returned to the London Police

Department. This testimony, coupled with Edmond's and appellant's testimonies that the

video was a fair and accurate depiction of the scene and events of January 22, 2018, is

sufficient to authenticate the video evidence.

       {¶ 50} In light of the above, we find the state met the threshold authentication

requirements of Evid.R. 901 and sufficiently established a chain of custody with regard to

State's Exhibit 2. As such, we find the trial court did not abuse its discretion in admitting

State's Exhibit 2, and therefore, appellant's remaining assignment of error is overruled.

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{¶ 51} Judgment affirmed.



PIPER and M. POWELL, JJ., concur.




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