[Cite as State v. Maiolo, 2015-Ohio-4788.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2015-CA-15
                                                   :
 v.                                                :   Trial Court Case No. 14-CR-434
                                                   :
 JAMES MAIOLO                                      :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 20th day of November, 2015.

                                              ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1} James Maiolo appeals from his conviction for breaking and entering. Finding
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no prejudicial error, we affirm.

                                      I. Background

       {¶ 2} Maiolo was indicted on one count of breaking and entering for breaking into

a vacant house with his brother, who was also charged. While his brother pleaded guilty,

Maiolo’s case was submitted to a jury. At trial, the state presented a video recording from

a surveillance camera that shows two men forcing their way into the house. The owner of

the house testified that he installed the camera, and he explained how it worked. Detective

Ronald Jordan of the Springfield Police Department testified that when he saw the video

he recognized the two men as James and Darren Maiolo, both of whom he knew sold

scrap metal to area dealers. Detective Jordan also testified that, in his experience, the

motivation for breaking into vacant houses is often to steal metal that can be sold.

       {¶ 3} A jury found Maiolo guilty, and he was sentenced to 12 months in prison.

       {¶ 4} Maiolo appealed

                                       II. Analysis

                    A. Admission of Maiolo’s brother’s guilty plea

       {¶ 5} The first assignment of error alleges that the trial court erred by admitting

evidence that Maiolo’s brother pleaded guilty. “ ‘The admission of evidence is within the

discretion of the trial court. * * * Thus the court’s decision will be reversed only upon a

showing of an abuse of discretion.’ ” State v. Miller, 2d Dist. Greene No. 09-CA-74, 2012-

Ohio-211, ¶ 19, quoting Banford v. Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 2010-

Ohio-2470, 932 N.E.2d 313, ¶ 38.

       {¶ 6} The state referred to Darren Maiolo’s guilty plea twice. During its examination

of Detective Jordan, the state asked, “Has Darren Maiolo plead guilty to his involvement
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in this case?” (Tr. 93). After objection and a sidebar where the court found the brother’s

plea relevant, Jordan answered, “Yes, he did.” (Id.). During closing arguments, the state,

referring to the surveillance video, said to the jury, “He [Detective Jordan] knew them as

soon as he saw them. Darren who already pled guilty is seen only briefly. James, on the

other hand, is the star of the show * * *.” (Id. at 112-113).

       {¶ 7} “It is well settled that one person’s guilty plea or conviction may not be used

as substantive evidence of the guilt of another. State v. Clark, 2d Dist. Montgomery No.

13435, 1994 WL 171223, *7 (May 4, 1994), citing United States v. King, 505 F.2d 602

(5th Cir.1974). In Clark, supra at *7, we cited with approval the following passage from

United States v. Bryza, 522 F.2d 414, 425 (7th Cir.1975):

              Normally the fact that co-defendants have entered guilty pleas has

       no place in another defendant's trial. Guilty pleas of co-defendants should

       be brought to the attention of the jury in only certain narrow instances; i. e.,

       when it is used to impeach trial testimony or to reflect on a witness'

       credibility in accordance with the standard rules of evidence; where other

       co-defendants plead guilty during trial and are conspicuously absent; where

       opposing counsel has left the impression of unfairness which raises the

       issue or invites comment on the subject. In all of these situations the trial

       judge should give a cautionary instruction concerning the guilty pleas when

       he charges the jury. However, if the trial judge thinks that the admission of

       co-defendant's guilty pleas arose out of aggravated or egregious

       circumstances and that even the strongest curative instruction would be

       insufficient he can take more drastic action such as declaring a mistrial. Cf.:
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       United States v. Baete, 414 F.2d 782 (5th Cir.1969). In some cases this

       entire problem could be avoided by simply allowing counsel to bring out the

       fact that the co-defendants were indicted, thus avoiding the impression that

       the government is being unfair without telling the jurors that the co-

       defendants had actually admitted their guilt.

Id. at 425 (footnote omitted). None of the narrow circumstances mentioned in

Bryza applies here. The trial court erred by admitting the Appellant’s brother’s

guilty plea.

       {¶ 8} Nonetheless, here the evidence erroneously admitted was harmless under

Crim.R. 52(A). We have reviewed the entire surveillance video admitted at trial which

unmistakably reveals the identifiable defendant repeatedly prying on a door jamb with a

metal wrecking bar, forcing the door open and entering the unoccupied house. We do not

believe that the two brief references to Darren’s guilty plea had any prejudicial impact on

the verdict and it was harmless beyond a reasonable doubt. Moreover, the other evidence

establishes Maiolo’s guilt beyond a reasonable doubt. Compare State v. Harris, 142 Ohio

St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37 (establishing the analysis that appellate

courts are to use in determining whether an error has affected the substantial rights of a

defendant).

       {¶ 9} The first assignment of error is overruled.

                            B. Admission of other evidence

       {¶ 10} The second assignment of error alleges that the trial court erred by

admitting the surveillance video, Detective Jordan’s identification of Maiolo, a photograph

of Maiolo, and Detective Jordan’s testimony that Maiolo sold scrap metal in Springfield.
                                                                                           -5-




       {¶ 11} Maiolo contends that no foundation was laid for the admission of the

surveillance video, that the video was never authenticated. Evid.R. 901(A) provides that

“[t]he 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 the proponent claims.” A video is treated like a photograph under the

rules of evidence. See Evid.R. 1001(2). Photographic evidence is admissible under two

different theories. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d

1023, ¶ 150. Under the “pictorial testimony” theory, “ ‘the photographic evidence is merely

illustrative of a witness’ testimony.’ ” Id., quoting Midland Steel Prods. Co. v. U.A.W. Local

486, 61 Ohio St.3d 121, 129, 573 N.E.2d 98 (1991). And under the “silent witness” theory,

“ ‘the photographic evidence is a “silent witness” which speaks for itself, and is substantive

evidence of what it portrays independent of a sponsoring witness.’ ” Id., quoting Midland

Steel at 130.

       {¶ 12} The video here is admissible under the “silent witness” theory. The

homeowner testified from personal knowledge about how the security system worked,

where the camera was positioned, and how the video was recorded. “No expert was

required to substantiate the reliability of the surveillance system.” Pickens at ¶ 151, citing

Midland Steel at 130. Also, Maiolo does not allege any problem with the recording itself.

“Under these circumstances,” the Ohio Supreme Court has concluded, “the state

adequately showed the reliability of the surveillance system and the videos produced by

it. Thus, the surveillance videos were properly authenticated.” (Citations omitted.) Id.

       {¶ 13} Maiolo next challenges the admission of Detective Jordan’s testimony that
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he recognized the individuals in the video as James and Darren Maiolo. Maiolo says that

the detective first indicated that he recognized them from dealing with them on prior cases

involving the sale of scrap metal. Not only is this testimony inadmissible prior bad acts

evidence, says Maiolo, but also inadmissible hearsay evidence because Detective Jordan

said that he had asked for the opinion of other officers in his department in order to identify

him and his brother.

       {¶ 14} The state asked Detective Jordan if, before he watched the video, he knew

the Maiolo brothers. Jordan said that he did. The state then asked, “And based upon your

interaction with them in the past, would you recognize them if you saw them?” (Tr. 89).

“Yes, I would,” Detective Jordan replied. (Id.). Earlier, Jordan had testified that he knew

Maiolo sold scrap metal in Springfield, but Jordan also said that it is not illegal to sell scrap

metal. We do not think that Detective Jordan’s identification testimony is necessarily

evidence of Maiolo’s prior bad acts. Even if it were, it would be admissible to prove

Maiolo’s motive or intent in breaking into the house. See Evid.R. 404(B). Detective

Jordan’s testimony here is certainly not hearsay. By definition, “‘[h]earsay’ is a statement,

other than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Evid.R. 801(C). In his identification,

Jordan did not testify about what someone else said, wrote, or did. See Evid.R. 801(A).

       {¶ 15} Maiolo also challenges the admission of his “book-in” photograph. He

contends that the state failed to authenticate the photo. Maiolo says that the trial court

admitted the evidence under the business-record hearsay exception but no evidence

proving the exception was presented.

       {¶ 16} During his direct examination, Detective Jordan testified that the photo was
                                                                                          -7-


a “book-in photograph” of Maiolo taken on June 15, 2014. (Tr. 95). On redirect, Jordan

was asked how he knew when the photo had been taken. Jordan said that, when he

asked another officer to send him the photo, he asked the officer when the photo had

been taken. Maiolo objected, and the trial court sustained the objection with respect to

what the other officer said. The state then started asking Detective Jordan about police

records to “lay[] a foundation for why this is within an exception of the hearsay rule.” (Id.

at 101). Maiolo again objected. Sustaining the objection, the trial court said that what the

other officer said is hearsay, but “[t]he document is an exception under police record.”

(Id.).

         {¶ 17} The purpose of the photograph was to show the jury that the person in the

video was Maiolo, because, as Detective Jordan testified, Maiolo looked different at trial

than he did around the time of the break-in. Jordan said that he saw Maiolo shortly after

the break-in and, at that time, his hair was longer than it was at the time of the trial. The

photograph is admissible under the “pictorial testimony” theory, which is described above,

as “ ‘merely illustrative’ ” of Detective Jordan’s testimony. Pickens, 141 Ohio St.3d 462,

2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 150, quoting Midland Steel, 61 Ohio St.3d at 129,

573 N.E.2d 98. Jordan authenticated the photo by saying that that was how Maiolo looked

shortly after the break-in. The date on which the photograph was taken is not really

relevant.

         {¶ 18} Lastly, Maiolo challenges Detective Jordan’s testimony that the Maiolo

brothers were known sellers of scrap metal in Springfield. Maiolo says that the detective’s

knowledge was not based on personal knowledge but on the detective’s review of the

business records of scrap metal buyers and the statements of other detectives.
                                                                                        -8-




      {¶ 19} It is not clear from the trial transcript where Detective Jordan’s knowledge

comes from. He had been assigned to the property crimes unit for over ten years. He

testified that a common reason for people to break into vacant houses is to steal metal

that they can sell and that this was a problem in Springfield. Scrap-metal dealers are

required by law to keep records of whom they buy from, said Jordan. He also said that

dealers keep surveillance camera video of sellers. Jordan said that he regularly visited

scrap-metal dealers and became familiar with the names in the records. The state then

asked Jordan, “Now, do you have knowledge from your experience of this defendant

being a person who sells scrap metal?” (Tr. 85). Maiolo objected, and during the sidebar

that followed, the state said that Jordan’s knowledge was “based upon his knowledge of

this defendant, based upon his years of experience.” (Id.). The trial court asked if Jordan

had examined business records, and the state said that he had.

      {¶ 20} It is possible that Detective Jordan’s knowledge that Maiolo sold scrap metal

comes from scrap dealers’ records. If this were the sole basis of his knowledge, both the

hearsay rule and Evid.R. 602, which requires witnesses to have personal knowledge of

matters about which they testify, may have been violated by admitting the testimony. But

Jordan’s testimony about video cameras and his later testimony that he knew what Maiolo

looked like suggests that Jordan’s knowledge may have a broader foundation.

      {¶ 21} Ultimately, though, we do not believe that the testimony prejudiced Maiolo.

The video of Maiolo breaking into the house combined with Detective Jordan’s

identification of him and testimony that a common motivation for breaking and entering

into vacant houses is to steal metal is more than enough to find Maiolo guilty.
                                                                                          -9-


       {¶ 22} The second assignment of error is overruled.

                                          III. Conclusion

       {¶ 23} We have overruled each of the assignments of error presented. Therefore

the trial court’s judgment is affirmed.

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



FAIN, J., concurs.

FROELICH, P.J., concurring:
       {¶ 24} Normally, a “book-in photograph” is admissible if it is not unduly prejudicial.

However, as with any photograph, there must be a foundation as to when it was taken

and that it is a fair and actual depiction of the subject of the photograph.

       {¶ 25} Here the court sustained an objection to the detective’s saying where he got

the photograph and to any testimony about how and when this or any book-in

photographs are taken; nonetheless, the court then held that the “document is an

exception under police record.” This is probably correct, but there was no foundation

established for the exception.

       {¶ 26} The detective was permitted to testify about his knowledge that the

appellant sold scrap metal, but then he added that breaking into houses, stealing and

selling metal was a problem in Springfield.         Whether or not a particular crime is a

“problem” in a local community is irrelevant to whether this particular individual on this

particular day at this house was breaking in to steal metal. Its only possible effect was

to influence the jury to do whatever it could do to stop this “problem” in their community –

by convicting this particular individual.
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      {¶ 27} The video clearly showed the appellant and his actions, the jury could see

the appellant throughout the trial, and the detective, who knew the appellant before the

trial, identified him. I concur that the errors were harmless beyond a reasonable doubt.

                                     ...........




Copies mailed to:


Ryan A. Saunders
Michael R. Pentecost
Hon. Douglas M. Rastatter
