[Cite as State v. Perkins, 2011-Ohio-2705.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-10-36

        v.

SHAYNA R. PERKINS,
nka SHAYNA R. GONZALES,                                    OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 09-CR-0280

                                      Judgment Affirmed

                              Date of Decision:   June 6, 2011




APPEARANCES:

        Cindy Wolph for Appellant

        Derek W. DeVine and Gregory A. Taposci for Appellee
Case No. 13-10-36



WILLAMOWSKI, J.

      {¶1} Defendant-appellant Shayna R. Perkins aka Shayna R. Gonzales

(“Perkins”) brings this appeal from the judgment of the Court of Common Pleas of

Seneca County finding her guilty of complicity to aggravated trafficking in drugs

and sentencing her to a mandatory sentence of four years in prison. For the

reasons set forth below, the judgment is affirmed.

      {¶2} On March 20, 2009, the Seneca County Drug Task Force –

METRICH Enforcement Unit (“Task Force”) conducted a controlled buy of 55

ecstasy pills through the use of a confidential informant (“CI”). The CI was

equipped with a recording device and the Task Force had set up video recording

equipment in the area. The buy was to take place between the CI and Peter

Haslinger (“Haslinger”). The cameras recorded Perkins driving a vehicle with

Haslinger in it. Then Perkins and Haslinger exited the vehicle and approached the

CI where they engaged in a conversation. The video then shows the three of them

walking to a shed where they disappeared from view. The sale of the ecstasy was

recorded only on audio tape. Perkins and Haslinger then returned to the vehicle

and left. The vehicle was subsequently stopped for following too closely to other

vehicles. Perkins consented to a search of the vehicle, but no contraband was

found during the search. Approximately two and a half months later, the CI was

killed by law enforcement personnel in a separate criminal confrontation. Prior to

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his death, the CI’s services had been terminated when it was discovered that he

was continuing to use drugs.

      {¶3} On December 16, 2009, the Seneca County Grand Jury indicted

Perkins on one count of complicity to aggravated trafficking in drugs in violation

of R.C. 2923.03(A)(2) and R.C. 2925.03(A)(1)(C)(1)(d) with juvenile and

forfeiture specifications. The charge was a felony of the first degree. On May 27,

2010, the State filed a motion in limine to allow the introduction of the audio and

video evidence of the drug purchase. The trial court held a hearing on the motion

before a bench trial began on June 6, 2010. The trial court granted the motion.

The matter then proceeded to trial. At the conclusion of the trial, the trial court

took the matter under advisement. On June 15, 2010, the trial court announced in

open court its finding of guilt that Perkins was complicit in the aggravated

trafficking in drugs. The trial court also found that the offense was committed in

the vicinity of a juvenile and found that the vehicle was subject to forfeiture. On

August 18, 2010, a sentencing hearing was held. The trial court ordered Perkins to

serve four years in prison and ordered forfeiture of the vehicle. Perkins appeals

from this judgment and raises the following assignments of error.

                           First Assignment of Error

      The trial court abused its discretion and denied [Perkins] her
      fundamental right to a fair trial, and her Sixth Amendment
      rights to confrontation of witnesses, by permitting the State to

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       submit audio and video evidence obtained via use of a [CI] when
       the [CI] was deceased and thus no longer available for [Perkins]
       to confront at trial.

                           Second Assignment of Error

       The trial court abused its discretion in finding that [Perkins] was
       guilty of complicity beyond a reasonable doubt. Mere presence
       or proximity to the alleged transaction, the “context” established
       by the audio and video recordings, were not sufficient to prove
       that [Perkins] made affirmative actions meeting the definition of
       “aiding” or “abetting” the crime charged.

       {¶4} In the first assignment of error, Perkins alleges that the trial court

erred by admitting the audio and video evidence of the drug purchase when the CI

was no longer available to testify at trial. The admission of evidence is within the

sound discretion of the trial court. State v. Ray, 189 Ohio App.3d 292, 2010-Ohio-

2348, 938 N.E.2d 378. However, “[i]n all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the witnesses against him.” The Sixth

Amendment to the United States Constitution. The United States Supreme Court

has held 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.” Crawford v.

Washington (2004), 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177. When

a hearsay statement is testimonial in nature, the statement is inadmissible,

regardless of its reliability and regardless of the declarant’s unavailability, unless


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the defendant had a prior opportunity to cross-examine the declarant. Id. at 42-60.

See also Ray, supra, and State v. Nix, 1st Dist. No. C-030696, 2004-Ohio-5502,

¶73.

       To determine whether a statement is “testimonial,” the court in
       Crawford did not precisely define the term, but listed the
       following examples: (1) ex parte in-court testimony or its
       functional equivalent, such as affidavits and prior testimony that
       the defendant was unable to cross-examine, or pretrial
       statements that declarants would reasonably expect to be used in
       a prosecution, (2) extra-judicial statements contained in formal
       testimonial materials such as depositions, prior testimony, or
       confessions, and (3) statements made under circumstances that
       would lead an objective witness to believe that the statement
       would be available for use at a later trial.

Ray, supra at ¶32. The meaning of testimonial statements was further considered

by the U.S. Supreme Court in Davis v. Washington (2006), 547 U.S. 813, 126

S.Ct. 2266, 165 L.Ed.2d 224.

       Statements are nontestimonial when made in the course of police
       interrogation under circumstances objectively indicating that
       the primary purpose of the interrogation is to enable police
       assistance to meet an ongoing emergency. They are testimonial
       when the circumstances objectively indicate that there is no such
       ongoing emergency, and that the primary purpose of the
       interrogation is to establish or prove past events potentially
       relevant to later criminal prosecution.

Id. at 822. Finally, the Ohio Supreme Court has set forth the following test.

       For Confrontation Clause purposes, a testimonial statement
       includes one made “under circumstances which would lead an
       objective witness reasonably to believe that the statement would
       be available for use at a later trial.” * * * In determining

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       whether a statement is testimonial for Confrontation Clause
       purposes, courts should focus on the expectation of the declarant
       at the time of making the statement; the intent of a questioner is
       relevant only if it could affect a reasonable declarant’s
       expectations. This test conforms to Crawford and is supported
       by both state and federal authority. This definition also
       prevents trampling on other portions of hearsay law that
       Crawford expressly states do not implicate the right to confront
       witnesses.

State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶36, 855 N.E.2d 834

(citations omitted).

       {¶5} In this case, Perkins argues that the trial court erred in admitting the

video and audio tapes made of the drug buy because the CI was not available for

cross-examination. This court has previously addressed the question of whether

tapes of drug purchases are testimonial evidence in State v. Stewart, 3d Dist. No.

13-08-18, 2009-Ohio-3411. In Stewart, this court held that tape recordings made

of the actual drug transactions are not hearsay. Id. at ¶90. Instead, the tapes are

merely being used to establish the context of a defendant’s statements and not to

prove the truth of the matter asserted in the statements by the CI. Id. (citing State

v. Sloan, 8th Dist. No. 79832, 2002-Ohio-2669; United States v. Price (1986), 792

F.2d 994; and United States v. Lemonakis (1973), 485 F.2d 941). If the statements

are not testimonial in nature, then the Confrontation Clause is not implicated. The

video tape of Perkins approaching the site of the drug transaction and the audio



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tape of the drug transaction are thus not testimonial in nature and need not be

excluded.

       {¶6} Perkins also raises an issue with the use of the tape of the debriefing

of the CI after the purchase is complete. The debriefing tape, unlike the prior

tapes occurred outside of the presence of Perkins and thus does not put her own

comments into context.       Thus, it would be a hearsay statement that would

normally be excluded. However, in this case, the debriefing tape was played by

the defense when cross-examining the State’s witness. After the tape was played,

the State questioned the witness on re-direct concerning some statements made on

the tape introduced by Perkins. Pursuant to the doctrine of invited error, a party

may not take advantage of an error that he or she created. State v. Bey (1999), 85

Ohio St.3d 487, 709 N.E.2d 484.         The doctrine of invited error precludes a

defendant from introducing evidence that would normally be hearsay during cross-

examination of a witness and then objecting to the use of the evidence on re-direct.

State v. McCombs, 9th Dist. No. 22837, 2006-Ohio-3289, ¶13. For the reasons set

forth above, the first assignment of error is overruled.

       {¶7} In the second assignment of error, Perkins argues that the evidence

was not sufficient to support the finding of guilt.

       When reviewing the sufficiency of the evidence to support a
       criminal conviction, a court must examine the evidence admitted
       at trial to determine whether such evidence, if believed, would

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       convince the average juror of the defendant’s guilt beyond a
       reasonable doubt. The relevant inquiry is whether, after
       reviewing the evidence in a light most favorable to the
       prosecution, any rational trier of fact could have found the
       essential elements of the crime proven beyond a reasonable
       doubt.

State v. Ready (2001), 143 Ohio App.3d 748, 759, 758 N.E.2d 1203.

       {¶8} Here, Perkins was charged with one count of complicity to commit

aggravated trafficking of drugs with a specification that the sale occurred in the

vicinity of a juvenile. The State had to prove that Perkins knowingly aided or

abetted another in the sale of a controlled substance in the presence of a juvenile.

The video showed that Perkins drove Haslinger to the location with the child in the

rear seat of the vehicle. Perkins then walked with Haslinger around to the door of

the shed.   The audio tape of the sale indicates that Perkins was present and

participated. Perkins described her experiences with the pills that the CI was

purchasing and how the pills should be ingested. After the sale, Perkins then

proceeded to leave the shed with Haslinger and the CI and drove Haslinger from

the scene after which the purchased pills were handed over by the CI to the Task

Force. Viewing this evidence in a light most favorable to the State, a rational trier

of fact could have concluded that Perkins knowingly aided and abetted Haslinger

in the sale of the drugs while in the vicinity of a juvenile. Thus, the evidence is




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sufficient to support the conviction and the second assignment of error is

overruled.

       {¶9} Having found no error prejudicial to the defendant, the judgment of

the Court of Common Pleas of Seneca County is affirmed.

                                                           Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/jlr




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