[Cite as State v. Hood, 134 Ohio St.3d 595, 2012-Ohio-5559.]




             THE STATE OF OHIO, APPELLEE, v. HOOD, APPELLANT.*
          [Cite as State v. Hood, 134 Ohio St.3d 595, 2012-Ohio-5559.]
Evidence—Criminal        law—Confrontation         Clause—Admission      of   cell-phone
        records—Cell-phone records, if properly authenticated, are business
        records and are not testimonial under Crawford v. Washington—If not
        authenticated,      cell-phone     records      are    inadmissible   hearsay—
        Authentication may be provided only by custodian or other witness who is
        qualified to testify that records were kept in ordinary course of regularly
        conducted business—Error in admission of evidence harmless when other
        evidence of guilt is overwhelming.
 (No. 2010-2260—Submitted November 2, 2011—Decided December 3, 2012.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 93854, 2010-Ohio-5477.
                                 __________________
        PFEIFER, J.
        {¶ 1} The issue we address in this case is whether, in general, cell-phone
records produced by a cell-phone company constitute testimonial evidence that
implicates a defendant’s right to cross-examine a witness under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. We hold that
ordinarily such records, if properly authenticated, are business records and are not
testimonial. However, in an instance where cell-phone records are not properly
authenticated at trial, they are inadmissible as hearsay and their admission violates
a defendant’s rights under the Confrontation Clause. In this case, we find that the
admission of the cell-phone records was error but that that error was harmless
beyond a reasonable doubt.




*Reporter’s Note: This decision was vacated on December 31, 2012. See opinion on
reconsideration that appears at 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057.
                           SUPREME COURT OF OHIO




                     Factual and Procedural Background
       {¶ 2} In the early morning hours of January 26, 2009, defendant-
appellant, James Hood, allegedly was one of four men who burst into a Cleveland
home and robbed at gunpoint nearly a dozen people who had gathered to celebrate
the birthdays of friends and family. A co-conspirator, Samuel Peet, was shot dead
during the course of the robbery. Hood was arrested and charged with murder
and multiple counts of aggravated burglary, aggravated robbery, and kidnapping.
As part of the proof to establish Hood’s involvement in the crimes, the state
introduced cell-phone records that it argued showed his communication with the
other co-conspirators and his whereabouts during the early morning in question.
The issue we address is whether the introduction of that evidence violated the
Confrontation Clause of the Sixth Amendment to the United States Constitution.
                                   The Crime
       {¶ 3} In the late evening of January 25, 2009, a group of friends gathered
in the basement of Sharon Jackson’s home on Parkview Avenue in Cleveland to
play cards and celebrate the birthdays of Denotra Jones and her son, Rodney.
Among the guests that evening was one of the alleged co-conspirators, Terrence
Davis, also known as “TD.” According to Rodney Jones, Davis’s presence was
unusual: Davis had not joined the group in over a year, and he left the party
several times throughout the evening. Davis had met earlier that day with Samuel
Peet and the other co-conspirators—Hood and Kareem Hill—and told them about
the party.
       {¶ 4} Jerrell Jackson, homeowner Sharon Jackson’s son, was the first
person to be confronted by the assailants. He had walked some guests to their
cars at around 5:00 a.m.; when he went back inside, there were four men in the
hallway wearing masks and carrying guns. Jerrell noticed that one gun was an
Uzi. Jerrell ran down into the basement, yelling a warning to everyone. Sharon
Jackson, who had fallen asleep on a couch in her basement, was awakened by the




                                       2
                               January Term, 2012




commotion; she saw Jerrell being followed into the basement by four men
wearing masks and carrying guns.         She described the guns as two 9 mm
handguns, one Uzi, and one handgun with a long chrome barrel. The robbers
made the victims strip, then searched the clothing and took money and cell
phones.
       {¶ 5} Nine of the eleven victims testified at trial. They described the
same basic facts—men in dark clothing, wielding guns, stormed into the
basement, ordered some of the victims to remove their clothes, and stole money
and cell phones from them at gunpoint. Some witnesses differed on the number
of assailants, ranging from two to four, but the victims were robbed in two
separate rooms of the basement. At some point, gunshots were heard. One of the
co-conspirators, Peet, was later found dead nearby, in a yard several houses away.
Several of the victims were able to identify him as one of the assailants due to his
distinctive coat. He had been shot twice from close proximity; on his body were
two cell phones belonging to victims and $345 in cash.
       {¶ 6} Earlier that morning, around 4:00 a.m., police received a report of
a male pointing a gun at another male in the area of East 104th Street and Sophia
Avenue, near where Hood lived. En route to the scene, the officers observed a
green Jeep Cherokee stopped in the middle of Parkview Avenue with its lights on.
As the officers approached, the Jeep sped away. The officers pursued the Jeep
and were able to get a partial plate number, “EOF,” before losing sight of the
vehicle. The same officers were called to help investigate the Parkview Avenue
break-in and were told that a sport utility vehicle was involved in the crime.
Shortly after the break-in, a green Cherokee, license plate number EOF 7079 was
spotted at a local McDonald’s. Hood, his co-defendant Kareem Hill, and William
Sparks were removed from the vehicle and arrested. Cash, a mask, and two
victims’ cell phones were found inside. At the time of his arrest, Hood had
$411.25 in cash in his possession. Hill eventually testified against Hood.



                                         3
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                             Kareem Hill’s Testimony
        {¶ 7} Hill initially lied to police and denied any involvement in the
crimes. But when a latex glove found at the scene tested positive for Hill’s DNA,
Hill pleaded guilty to reduced charges and agreed to testify truthfully against
Hood.
        {¶ 8} Hill knew his co-conspirators Hood, Davis, and Peet from the
neighborhood where he grew up. Hill was 18 at the time of the crimes; Hood was
older—he was 29 at the time of the trial, according to his attorney. In the hours
before the robbery, Hill and Hood met Davis and Peet at a bar.             The four
discussed robbing a card game on Parkview Avenue. Davis left the bar to go to
the party. Davis eventually returned to the bar and laid out the specifics about the
party situation.
        {¶ 9} They all left the bar—Davis and Peet in one car, and Hill and Hood
in Hill’s green Jeep Cherokee. Hood and Hill went to Hood’s house on Sophia
Avenue to pick up guns. Hood went into his house and returned to the vehicle
with a semiautomatic pistol, an Uzi, and latex gloves. Hill and Hood then drove
to Parkview Avenue, where they saw Peet standing in a driveway near the target
house; they let Peet get into the back seat of the Jeep. Peet had a gun.
        {¶ 10} The three waited in the car. When Davis approached and informed
them that the back door of the target house was open, Hood and Peet left the
vehicle while Hill parked on the next street. Hill then cut through back yards to
meet the others. All had weapons and wore hats or masks; Hill, Hood, and Davis
wore latex gloves.    Hill carried a black handgun, Peet carried a long silver
revolver, Davis carried a black pistol, and Hood carried an Uzi.
        {¶ 11} Hill testified that he and his cohorts took money and cell phones
from the victims. At one point, there was an argument between Hood and Peet—
Hood had accused Peet of stealing money from the pile of cash that was to be
divided. Davis broke up the altercation by announcing that it was time to leave.




                                         4
                               January Term, 2012




       {¶ 12} Hill ran up the stairs and outside; he was outside when he heard
gunshots from inside the house. He never saw Peet leave the house. Hill and
Hood left in Hill’s Jeep while Davis went off in another direction.
       {¶ 13} Hill and Hood returned to Hood’s house on Sophia to drop off the
guns. Hood went inside. Hood returned to the Jeep, and the two picked up Hill’s
friend William Sparks, who, Hill said, had called him for a ride to McDonald’s.
Hill let Sparks drive. They went to McDonald’s, where police stopped and
arrested the three. The state ultimately did not pursue charges against Sparks.
                        Cellular-Phone-Record Testimony
       {¶ 14} At trial, the prosecution introduced cell-phone records for Hood,
Hill, and Davis that detectives claimed to have subpoenaed from cellular-phone
companies. Detective Carlin described the subpoena process:


               We have to go to a county prosecutor. We can’t just go and
       say we want these records. The phone companies have rules on
       that. They just don’t give them out.
               We obtain an authorization for a subpoena and then we
       respond to—there is a subpoena person in the prosecutor’s office
       * * *. We provide them with the numbers, they then type up the
       subpoenas, and based on their records and their relationship with
       the phone companies, they know, with the prefix numbers, what
       company that subpoena needs to go to and they direct the subpoena
       to that company.


       {¶ 15} Carlin testified that the cell-phone records were obtained through
that process; however, the subpoenas are not in the record.
       {¶ 16} The records purport to show cell-phone activity by Hood, Hill, and
Davis on the night and early morning in question. During Hill’s testimony, the



                                         5
                              SUPREME COURT OF OHIO




prosecution used the records to ask Hill about certain calls that were placed by his
phone or received by his phone. Those calls included ones made by Hill’s cell
phone to Davis’s cell phone and vice versa, some right around the time of the
crimes. Indeed, Detective Carlin testified that Davis first became a suspect in the
robberies when the phone records were reviewed. There was also a call from one
of the stolen cell phones to Hill’s phone; Hill claimed that Hood had called Hill’s
number to see whether the stolen phone worked. The records showed Hill trying
to contact Davis several times just before and after the robberies; Hill testified
that Hood borrowed his phone to make those calls.
          {¶ 17} When the prosecution first attempted to use cell-phone records in
its direct examination of Hill, the defense objected, claiming that the records
lacked verification or certification of their authenticity. The prosecution argued
that the records fell under the business-records exception to the hearsay rule and
that Hill could verify the records based on his own knowledge.           The court
determined that the prosecution could use the records to have Hill testify as long
as another witness would authenticate the records. The prosecutor stated that
Detective Carlin, who subpoenaed the records, would testify as to how she
obtained them. The defense argued that Detective Carlin could not authenticate
business records of another entity and entered a continuing objection on the
record.
          {¶ 18} On cross-examination, the defense used the phone records to poke
holes in Hill’s version of events.     For instance, phone records showed that
someone used Hill’s cell phone to call Hood’s cell phone at 2:42 a.m. Hill could
not explain why he would have called Hood at a time when, according to Hill, the
two men were a few feet apart, in the same car.
          {¶ 19} After the cross-examination, Hood renewed his objection to the
cell-phone records after the state related that it would use Detective Carlin’s
partner, Detective Henry Veverka, to verify the records. The trial court remarked




                                         6
                               January Term, 2012




at that time: “I’ve done the case law research on it and my gut reaction is to
subpoena Verizon on that basis. I guess Veverka would just have to come in and
say that he issued it, how he’s familiar with the business records of the company.
That would be the testimony that would be proper.”
       {¶ 20} Detective Veverka testified that the records were obtained through
subpoena. He also testified about his experience interpreting cell-phone records,
which he learned mostly on the job through other detectives, including experience
in using information from providers to determine geographic locations of the cell
phone at the time calls were made, based upon cell-tower data. Veverka testified
that Hood did not have his cell phone with him at the time of his arrest. He
reviewed call logs for the days at issue, as well as cellular-tower records. He
testified as to State’s Exhibit 187, which contained tower records for Hood’s cell
phone. Those records indicated which cell tower Hood was near when he used
his phone.
       {¶ 21} Through the records, Veverka was able to ascertain that between
10:00 p.m. through 3:00 a.m., 15 calls were made or received on Hood’s phone.
The last of those 15 calls was at approximately 2:42 a.m.; the next call was at 6:24
a.m. He was able to determine through tower records that Hood was in the
vicinity of the robbery when he used his cell phone. Through another record
containing a log of calls to and from Hood’s cell phone, Veverka was able to
determine the dates and duration of the calls and the phone numbers involved.
       {¶ 22} From his examination of the cell-phone records, Veverka
concluded that Hood, Hill, and Davis were all in the vicinity of the targeted house
at the time the robberies were committed.
       {¶ 23} Defense counsel cross-examined Veverka.           He admitted that
although he knew more about interpreting cell-phone records than his fellow
detectives, he did not have any expertise in cell phones or towers. He admitted
being unaware that different towers have different powers and admitted that



                                         7
                              SUPREME COURT OF OHIO




phone company experts could provide maps and charts showing which towers
serve which areas.
       {¶ 24} The records Veverka testified about were admitted into evidence.
The documents sent to the jury contained some alterations by the detective—he
wrote the phone numbers of the suspects on the documents and color-coded the
records to highlight phone calls involving the different participants in the robbery.
Hood’s counsel objected, stating that the records had not been verified as a
business record, had not been identified by any phone company, and contained the
detective’s personal notes, and that the alleged subpoenas were not in the record.
The trial judge overruled the objection.
                                 Verdict and Appeal
       {¶ 25} The jury convicted Hood on one count of murder pursuant to R.C.
2903.02(B), “caus[ing] the death of another as a proximate result of the offender’s
committing or attempting to commit an offense of violence that is a felony of the
first or second degree,” and acquitted him on one count of murder as defined in
R.C. 2903.02(A), “purposely caus[ing] the death of another.” Further, the jury
convicted Hood of nine counts of kidnapping, nine counts of aggravated robbery,
and one count of aggravated burglary, as well as two firearm specifications for
each count, which were merged for purposes of sentencing into a single
specification. The trial court had granted Hood’s motion for acquittal on two
counts of kidnapping and two counts of aggravated robbery when two of the
victims failed to testify. The court ultimately sentenced Hood to an aggregate
term of 21 years to life in prison.
       {¶ 26} Hood appealed his convictions to the Eighth District Court of
Appeals; among other things, he argued that the trial court had erred “by allowing
cell phone records to be admitted into evidence without being properly
authenticated in violation of the Confrontation Clause.” The appellate court held
that “[a]ssuming arguendo that these records were inadmissible and violative of




                                           8
                                 January Term, 2012




appellant’s right to confront the witnesses against him, any error on the part of the
trial court in this regard was harmless.” State v. Hood, 8th Dist. No. 93854, 2010-
Ohio-5477, ¶ 27.        The appellate court applied the harmless-error standard
applicable to constitutional error:


          Before constitutional error can be considered harmless, we must be
          able to “declare a belief that it was harmless beyond a reasonable
          doubt.” Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct.
          824, 17 L.Ed.2d 705. Where there is no reasonable possibility that
          the unlawful testimony contributed to a conviction, the error is
          harmless and therefore will not be grounds for reversal. State v.
          Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623, paragraph three
          of the syllabus, vacated on other grounds in (1978), 438 U.S. 910,
          98 S.Ct. 3135, 57 L.Ed.2d 1154.


Id.
          {¶ 27} The appellate court determined that the admission of the cell-
phone records did not contribute to Hood’s conviction and affirmed the judgment
of the trial court.
          {¶ 28} Hood sought jurisdiction in this court on the following proposition
of law:


                 Cell phone records are not admissible as business records
          without proper authentication. The admission of unauthenticated
          cell phone records under the business records exception violates
          the Confrontation Clause of the Sixth Amendment to the United
          States Constitution.




                                            9
                            SUPREME COURT OF OHIO




       {¶ 29} The matter is before this court upon the acceptance of a
discretionary appeal. 128 Ohio St.3d 1411, 2011-Ohio-828, 942 N.E.2d 384.
                               Law and Analysis
                              Confrontation Clause
       {¶ 30} The Sixth Amendment to the United States Constitution, in its
Confrontation Clause, preserves the right of a criminal defendant “to be
confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S.
36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court of the
United States stated that the Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.”
The key issue is what constitutes a testimonial statement: “It is the testimonial
character of the statement that separates it from other hearsay that, while subject
to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273,
165 L.Ed.2d 224 (2006).
       {¶ 31} In Crawford, the court suggested that business records are “by
their nature” nontestimonial. Id. at 56. In State v. Craig, 110 Ohio St.3d 306,
2006-Ohio-4571, 853 N.E.2d 621, this court stated that business records “are not
‘testimonial in nature because they are prepared in the ordinary course of
regularly conducted business and are “by their nature” not prepared for
litigation.’ ” Id. at ¶ 82, quoting People v. Durio, 7 Misc.3d 729, 734, 794
N.Y.S.2d 863 (N.Y.Sup.Ct.2005). Whether a business record meets a hearsay
exception is immaterial in regard to the Confrontation Clause; it is the
nontestimonial character of the record that removes it from the purview of the
Confrontation Clause:




                                        10
                               January Term, 2012




       Business and public records are generally admissible absent
       confrontation not because they qualify under an exception to the
       hearsay rules, but because—having been created for the
       administration of an entity’s affairs and not for the purpose of
       establishing or proving some fact at trial—they are not testimonial.


Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527, 174 L.Ed.2d
314 (2009).
       {¶ 32} A Confrontation Clause issue can arise “ if the regularly conducted
business activity is the production of evidence for use at trial.” Id. at 321. In
Melendez-Diaz, for instance, the items of evidence at issue were reports by a
company that provided forensic analysis on seized substances to establish whether
they were illegal.
       {¶ 33} But the regularly conducted business activity of cell-phone
companies is not the production of evidence for use at trial. The fact that records
are used in a trial does not mean that the information contained in them was
produced for that purpose. Even when cell-phone companies, in response to a
subpoena, prepare types of records that are not normally prepared for their
customers, those records still contain information that cell-phone companies keep
in the ordinary course of their business. In United States v. Yeley-Davis, 632 F.3d
673, 679 (10th Cir.2011), the defendant argued that the documents produced by
the cellular-phone company were not merely phone records but were instead
exhibits prepared especially for trial to prove the commission of a crime. The
information contained in the exhibits was similar to that contained in the exhibits
at issue in this case: “The phone records provide information about each call
made or received by Ms. Yeley-Davis's number, including the number making the
call, the number receiving the call, and the date and duration of the call.” Id. at
677. The court rejected the defendant’s argument:



                                        11
                               SUPREME COURT OF OHIO




               Ms. Yeley-Davis contends that the phone records and
        authenticating documents in Exhibit 5 are testimonial because they
        were prepared solely for use at trial to prove the conspiracy. * * *
        Specifically, she argues that the records were not telephone bills,
        but rather “exhibits prepared especially and only for trial.” * * *
        Ms. Yeley-Davis is correct that the phone records in Exhibit 5 are
        not telephone bills.    This does not mean, however, that these
        records were created simply for litigation—they were not. Rather,
        these records were kept for Verizon’s business purposes.


Id. at 679.
        {¶ 34} Likewise, in United States v. Green, 396 Fed.Appx. 573, 575 (11th
Cir.2010), the court held that subpoenaed records from the defendant’s cell-phone
carrier were not testimonial: “[The defendant’s] cell phone records and cell tower
location information qualified as business records under Fed.R.Evid. 803(6)
which, by their nature, are non-testimonial for purposes of the Sixth
Amendment.” The court noted that “documents which are routinely recorded for
a purpose other than preparation for a criminal trial are non-testimonial for
purposes of the Sixth Amendment.” Id. at 574-575.
        {¶ 35} Unlike the laboratory reports that the court found to be testimonial
in Melendez-Diaz or Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705,
180 L.Ed.2d 610 (2011), the culling and configuration of cell-phone records does
not require the undertaking of a scientific process or an interpretation of results
from experimentation. It reflects only a formatting of information that already
exists as a part of the company’s day-to-day business.




                                        12
                               January Term, 2012




                       Authentication of Business Records
       {¶ 36} Because cell-phone records are generally business records that are
not prepared for litigation and are thus not testimonial, the Confrontation Clause
does not affect their admissibility. But the hearsay rule may bar their admission
unless certain conditions are met:


       “To qualify for admission under Rule 803(6), a business record
       must manifest four essential elements: (i) the record must be one
       regularly recorded in a regularly conducted activity; (ii) it must
       have been entered by a person with knowledge of the act, event or
       condition; (iii) it must have been recorded at or near the time of the
       transaction; and (iv) a foundation must be laid by the ‘custodian’
       of the record or by some ‘other qualified witness.’ ”


State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171, quoting
Weissenberger, Ohio Evidence Treatise, Section 803.73, 600 (2007).
       {¶ 37} Here, there was simply no foundation laid by a custodian of the
record or by any other qualified witness. Detective Veverka was not a custodian
of the records. He did not prepare or keep the phone records as part of a regularly
conducted business activity. Nor was he an “other qualified witness” under the
rule. A “qualified witness” for this purpose would be someone with “enough
familiarity with the record-keeping system of the business in question to explain
how the record came into existence in the ordinary course of business.” 5
McLaughlin, Weinstein’s Federal Evidence, Section 803.08[8][a] (2d Ed.2009);
United States v. Lauersen, 348 F.3d 329, 342 (2d Cir.2003). Tellingly, in the
midst of discussions regarding the lack of authentication of the records, the trial
judge remarked, “My gut reaction is to subpoena Verizon.” That did not happen.




                                        13
                            SUPREME COURT OF OHIO




       {¶ 38} In Yeley-Davis, both the certification authenticating Yeley-Davis’s
phone records and the affidavit authenticating the phone records of her two
alleged co-conspirators stated that the records were kept in the course of
Verizon’s regularly conducted business. 632 F.3d at 677. In this case, there is no
such authentication. The records in this case lacked a certification or affidavit
authenticating them, and no “custodian or other qualified witness” testified that
the phone records were business records.
       {¶ 39} Thus, the cell-phone records in this case were hearsay; they were
“statement[s] * * * offered in evidence to prove the truth of the matter asserted.”
Evid.R. 801(C). They were offered to prove that cell-phone contact had occurred
between co-conspirators up to the time of the crime and immediately afterward.
Since the records were not authenticated pursuant to Evid.R. 803(6), they were
inadmissible as hearsay pursuant to Evid.R. 802.
       {¶ 40} A hearsay violation itself violates the Confrontation Clause, and
thus requires a heightened harmless-error analysis:


               As noted by the United States Supreme Court, hearsay
       violates the Confrontation Clause of the United States Constitution
       unless it comes within a firmly rooted exception or contains other
       indicia of reliability. White v. Illinois (1992), 502 U.S. 346, 356,
       112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859. Thus, any error in
       admitting this hearsay would be constitutional error. In order to
       find constitutional error harmless, this court must find beyond a
       reasonable doubt that the error did not contribute to the verdict.
       Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828,
       17 L.Ed.2d 705, 710-711.


State v. Johnson, 71 Ohio St.3d 332, 339, 643 N.E.2d 1098 (1994).




                                        14
                                January Term, 2012




       {¶ 41} In State v. Hirtzinger, 124 Ohio App.3d 40, 49-50, 705 N.E.2d 395
(2d Dist.1997), the court faced a similar issue. In a criminal trespass case, the
defendant’s ex-wife testified that she had called the defendant on his cell phone
when she saw his truck coming out of her driveway. She stated that he answered
the call, laughed at her, and hung up. The defendant denied answering the call
and denied that he was in the area. At trial, the prosecutor had the ex-wife
authenticate her own cell-phone bill to demonstrate that she had made a call at the
time she claimed and that the call had lasted less than a minute. The trial court
allowed the admission of the cell-phone bill based upon that authentication.
       {¶ 42} The appellate court held that the ex-wife could not self-
authenticate the phone bill:


               This rule [Evid.R. 803(6)] requires that some person testify
       as to the regularity and reliability of the business activity involved
       in the creation of the record. In the instant case, the prosecution
       did not call to the stand any Ameritech employees to testify as to
       the nature of their billing practices. The only foundation for the
       evidence came through Mrs. Hirtzinger. That foundation was not
       adequate.


Hirtzinger at 49. As for the appropriate error analysis, the court held:


       When a court admits hearsay against the dictates of Evid.R. 802,
       the standard of review is a strict one. “In the final analysis, the
       evidence in favor of conviction, absent the hearsay, must be so
       overwhelming that the admission of those statements was harmless
       beyond a reasonable doubt.” State v. Kidder (1987), 32 Ohio St.3d
       279, 284, 513 N.E.2d 311, 317.



                                         15
                             SUPREME COURT OF OHIO




Hirtzinger at 50.
                              Harmlessness Review
       {¶ 43} In determining whether admission of the cell-phone records was
harmless, the court below applied the “harmless beyond a reasonable doubt”
standard of review. Hood, 2010-Ohio-5477, at ¶ 27. “Where constitutional error
in the admission of evidence is extant, such error is harmless beyond a reasonable
doubt if the remaining evidence, standing alone, constitutes overwhelming proof
of [the] defendant’s guilt.” State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323
(1983), paragraph six of the syllabus. The court below concluded, “Considering
Hill’s devastating testimony against appellant, we cannot find that the admission
of the cell phone records contributed to appellant’s conviction.” 2010-Ohio-5477
at ¶ 30. We agree that the admission of the cell-phone records was harmless
beyond a reasonable doubt.
       {¶ 44} The evidence of Hood’s guilt was overwhelming. We first note
that jurors did not have to believe that Hood pulled the trigger to find him
responsible for Peet’s death; they just had to find that he participated in the
criminal act that led to Peet’s death. Kareem Hill was a co-conspirator and
eyewitness; Hill’s DNA was found at the scene. His version of events inside the
house was consistent with testimony from the victims. He provided detailed
testimony against Hood.
       {¶ 45} Hill’s testimony was, by itself, disastrous for the defense. And it
was corroborated by other evidence. Hood’s DNA was found in Hill’s vehicle, on
a cigar tip in the front ashtray; Hood could not be ruled out as a contributor to
DNA found on the right and left rear interior passenger doors of Hill’s vehicle.
Peet could not be ruled out as a contributor of part of the mix of DNA found on
the interior left rear passenger door, corroborating Hill’s testimony that Hood and
Peet had been together in Hill’s vehicle.




                                            16
                               January Term, 2012




       {¶ 46} When police surrounded Hill’s vehicle in the McDonald’s parking
lot following the robbery, Hood was inside. Also in the vehicle were cell phones
stolen during the robbery, as well as cash. A large amount of cash was found in
Hood’s possession.
       {¶ 47} What role did the cell-phone records play in Hood’s conviction?
Upon review, we conclude that the records were of minimal probative value and,
at most, were merely cumulative in effect. Veverka testified that cell-tower logs
placed Hood in the vicinity of the crime. But there were no calls to or from Hood
between 2:52 a.m. and 6:24 a.m. on the morning of the crime. The break-in
occurred at around 5:00 a.m., so the cell towers do not place him in the vicinity at
the crucial time.
       {¶ 48} In one respect, the phone records could even be seen as weakening
the state’s case against Hood.     As the defense pointed out during its cross-
examination of Hill, the records reflect calls made between Hill and Hood at times
when the two men were, according to Hill, together in Hill’s car. Hill had no
explanation for why two people would communicate by phone when they were
both inside the same car.
       {¶ 49} Terrence Davis’s records were also introduced. The records reveal
no contact with Hood, but there is contact with Hill. This does back up Hill’s
testimony that conversations regarding planning occurred between someone using
Hill’s phone and Davis.
       {¶ 50} But the key evidence—the evidence that places Hood inside the
house participating in the crimes—does not depend in any way on the cell-phone
records. DNA evidence proves that Hill was there, and Hill placed Hood there,
armed with an Uzi, wearing latex gloves, and participating in the robberies.
Victim testimony corroborated to a large extent Hill’s version of events inside the
house. Hood was in the vehicle containing the spoils of the robberies soon after
they occurred. We thus conclude that the admission of the cell-phone records did



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not contribute to Hood’s conviction and that their admission was harmless beyond
a reasonable doubt.
       {¶ 51} We therefore affirm the judgment of the court of appeals.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
       O’DONNELL, J., dissents and would dismiss the appeal as having been
improvidently accepted.
                              __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Kristen
L. Sobieski, Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Melissa M. Prendergast,
Assistant Public Defender, for appellant.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, Elisabeth A. Long, Deputy Solicitor, and Samuel Peterson, Assistant
Attorney General, urging affirmance for amicus curiae, state of Ohio.
                           ______________________




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