State v. Sheckles , 2023 Ohio 133 ( 2023 )

[Cite as State v. Sheckles, 2023-Ohio-133.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220255
C-220256
Plaintiff-Appellant, : TRIAL NO. B-1907173
vs. :
O P I N I O N.
SONTEZ SHECKLES, :
Defendant-Appellee. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: January 18, 2023
Mark Piepmeier, Interim Hamilton County Prosecuting Attorney, and Ronald
Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} The state appeals from the trial court’s pretrial rulings on two motions
in limine, one prohibiting a state’s witness from testifying at trial, and one excluding a
compilation video that the state intended to introduce at trial. For the following
reasons, we affirm the judgments of the trial court.
Factual Background
{¶2} On January 2, 2020, Sontez Sheckles was charged with attempted
murder with gun specifications, felonious assault with gun specifications, and having
weapons while under a disability, stemming from a shooting that occurred at Chalet
Bar on November 29, 2019. The case was scheduled for a bench trial on May 12, 2022.
Although Sheckles was ready to proceed, the state requested a continuance to procure
a witness to authenticate a compilation video created by a Cincinnati police officer
from raw footage obtained from the cameras at Chalet Bar. Over objection by
Sheckles, the court continued the trial until May 25, 2022. The court warned the
prosecutor that if the witness were not present, the video would be excluded.
{¶3} A week later, the state emailed a certified copy of a federal plea
agreement to defense counsel that it intended to introduce at trial. The document had
been certified that day. In a federal case related to the shooting, Sheckles had pleaded
guilty to possession of ammunition. In order to introduce the document, the state
subpoenaed Zachary Kessler to testify. Kessler, a former prosecutor for the United
States Department of Justice, had participated in the federal plea agreement. The
state had previously notified Sheckles on April 7, 2022, that Kessler had been added
to its witness list.
{¶4} On the morning of the rescheduled trial, Sheckles filed a motion to
quash the subpoena issued to Kessler. The basis of the motion was that Kessler, as a
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former Department of Justice employee, was prohibited from testifying or producing
documents acquired while performing his official duties without obtaining prior
approval by a Department of Justice official under 28 C.F.R. 16.22. The prior approval
is referred to as a “Touhy letter.”
{¶5} The prosecutor informed the court that Kessler was present and would
testify about the federal plea and the written statement included in the plea
documents. Kessler represented to the court that he had spoken with Brandi Stewart
at the United States Attorney’s Office that morning, and she would try to contact the
court or provide the Touhy letter sometime that day.
{¶6} The court reviewed the plea document, but the document is not part of
this record. The prosecutor informed the judge that it was a lengthy document, and
the last page was a statement of facts acknowledged by Sheckles when he pled guilty
to possession of ammunition. When the court informed the state that Kessler could
not testify without the letter, the prosecutor responded that Kessler could “testify in
part without the letter.” However, the prosecutor never explained why Kessler could
testify without the Touhy letter or proffered the testimony of Kessler that would be
admissible without the Touhy letter.
{¶7} The judge again asked when the Touhy letter would be available, and
Kessler responded that he was told, “by today,” but, “I don’t know.” The court
explained that it could not determine whether Kessler could testify without the letter.
Kessler offered to contact Stewart again to obtain more information. Notably, Kessler
never represented to the court that he could testify without the authorization.
{¶8} The court informed defense counsel that Sheckles did not have standing
to object to the subpoena, but could file a motion in limine. The proceedings were
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OHIO FIRST DISTRICT COURT OF APPEALS
paused, and Sheckles filed a motion in limine addressing Kessler’s testimony. When
the proceedings resumed, the court gave the state the opportunity to respond to the
motions in writing, but the prosecutor stated he would respond orally.
{¶9} The court addressed the authentication of the video, which had
prompted the state’s prior continuance. The state had the husband and wife, who co-
owned the bar, present to testify. Sheckles objected to the witnesses because they had
not been previously disclosed by the state and further argued that the witnesses could
not authenticate a compilation video created by the Cincinnati Police Department.
The video was produced from raw footage, and Sheckles had not received any raw
video in discovery, only the compilation video.
{¶10} The prosecutor confirmed that the raw footage had been requested in
discovery, and that Sheckles had been informed of the raw footage, but did not ask to
view it at the prosecutor’s office or provide a computer disc, so it was not provided.
Instead, the state provided a compilation video. According to the state’s discovery
response, the state provided “surveillance videos from Chalet nightclub.” The
discovery response did not mention any additional video footage. The prosecutor also
admitted that the state did not supplement its discovery response with any additional
witnesses, including the names of the bar owners. The prosecutor admitted the
omissions could be considered discovery violations, and argued that the court was
obligated to rule on any discovery violations in the least restrictive manner.
{¶11} The court expressed its frustration that these issues were not addressed
prior to trial given the length of time the case was pending. The case had been pending
prior to the judge taking the bench. The court concluded, “And I think it’s bad faith
on the prosecution not to have all this to you before the day of trial. * * * And I’m just
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OHIO FIRST DISTRICT COURT OF APPEALS
putting that on the record because you know where I’m going with this.”
{¶12} The court further stated that they had been waiting three hours for a
Touhy letter and asked Kessler for an update. Kessler represented that the letter had
been sent to the prosecutor’s office, and forwarded to him so that he knew “the extent
to which the Touhy letter authorization is granted with respect to the testimony that I
can be expected to give today.” Kessler represented that he had a copy of the letter on
his phone, “so as far as he knew.”
{¶13} The trial court excluded Kessler’s testimony because the Touhy letter
was never produced. Although the prosecutor offered to give the court Kessler’s cell
phone, the state never submitted the Touhy letter to the court or proffered it for the
record on appeal.
{¶14} After another break, the parties addressed the authentication of the
video. The witness who was available to authenticate the video was a co-owner of the
bar. When it was discovered that he had a criminal record that prohibited him from
owning a bar, the state decided to call his wife and co-owner of the bar, Victoria Evans,
to authenticate the video. However, the state had already released her from testifying,
so another pause was taken to await her return.
{¶15} Upon her return, Evans testified that she co-owned the Chalet Bar with
her husband when the incident occurred. Evans confirmed that the bar has multiple
cameras in different locations, but she does not download videos from the recording
system or cut and splice them together. On November 29, 2019, detectives or police
officers removed the hard drive containing all the video recordings from the bar.
{¶16} The following exchange occurred between Evans and the judge:
Judge: Have you ever seen this compilation video?
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Evans: This?
Judge: Yes.
Evans: Like put the whole video, no.
Judge: That’s all I need to know. You can’t say that you’ve seen this whole
video?
Evans: The whole video or –
Judge: This compilation the way it’s presented in court today.
Evans: No.
{¶17} When questioned by the state, Evans acknowledged that she had a video
on her phone that she had watched a few minutes before testifying. She confirmed
that the video showed the outside of the bar and different scenes from the inside of the
bar from four different cameras. When asked “were those authentic videos of your bar
and your recording system from that night?,” she responded, “They were.”
{¶18} The court determined that Evans could not authenticate the video
because her equipment did not produce the video, and she did not know how it was
cut or spliced together. The court reminded the state that the sole purpose of the
hearing was to authenticate the video, and the court was unwilling to wait for the state
to procure the officer who created the video. The court granted the motion in limine
to exclude the video.
{¶19} The state asked the court to reconsider the rulings. When the court
declined, the prosecutor informed the court that the state was not ready to proceed to
trial, and instead, would appeal the decision. The state did not seek to admit the
compilation video into evidence or proffer it for the record on appeal.
{¶20} The state appealed both orders, in accordance with Crim.R. 16(K),
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OHIO FIRST DISTRICT COURT OF APPEALS
certifying in its notice of appeal that “(1) the appeal is not taken for purpose of delay;
and (2) the ruling excluding evidence has rendered the State’s proof with respect to
the pending charge so weak in its entirety that any reasonable possibility of effective
prosecution has been destroyed.”
Standard of Review
{¶21} A motion in limine, if granted, is a tentative, precautionary ruling by the
trial court that reflects its anticipated treatment of the evidence until the admissibility
can be determined during trial. State v. Grubb, 28 Ohio St.3d 199, 201-202, 503
N.E.2d 142 (1986). Generally, appellate courts review rulings on motions in limine for
an abuse of discretion, but where, as here, the state certifies that the ruling is the
functional equivalent of a suppression ruling, we use the standard of review for
motions to suppress. See State v. Thyot, 2018-Ohio-644, 105 N.E.3d 1260, ¶ 16 (1st
Dist.).
{¶22} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Law and Analysis
{¶23} In the first assignment of error, the state contends that the trial court
erred in excluding Kessler’s testimony. Specifically, the state argues it had the Touhy
letter available in court, but that the court refused to review it. The state further argues
that the court erred by excluding Kessler’s testimony pursuant to a motion in limine,
and instead, should have allowed the state to produce the letter at trial before ruling
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OHIO FIRST DISTRICT COURT OF APPEALS
on the admissibility of Kessler’s testimony. Finally, the state asserts that no legal rule
prohibited Kessler from testifying other than possible consequences from the
Department of Justice.
{¶24} Although the state contends that the Touhy letter was available for the
court to review, that is not what the record reflects. Rather, the record reflects that the
letter may have been attached to an email contained on Kessler’s cell phone.
Significantly, the record reflects that the state never produced the letter to the trial
court. Moreover, the content of the letter was never proffered in court or made part of
the record on appeal. Therefore, we find no merit to this argument.
{¶25} The state contends that the court should have allowed it to produce the
letter at trial before definitively ruling to exclude Kessler’s testimony prior to trial.
However, after the court ruled on the motion in limine, the state chose to appeal the
ruling instead of proceeding to trial. We cannot speculate as to whether the court
would have allowed the state to present a Touhy letter at trial and admitted Kessler’s
testimony.
{¶26} Without citing to any legal authority, the state claims that the federal
regulation does not prohibit a witness from testifying, rather, it merely subjects an
employee to possible consequences from the Department of Justice if the employee
testifies without prior authorization.
{¶27} 28 C.F.R. 16.22 states in relevant part:
(a) In any federal or state case or matter in which the United States is
not a party, no employee or former employee of the Department of
Justice shall, in response to a demand, produce any material contained
in the files of the Department, or disclose any information relating to or
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OHIO FIRST DISTRICT COURT OF APPEALS
based upon material contained in the files of the Department, or
disclose any information or produce any material acquired as part of the
performance of that person’s official duties or because of that person’s
official status without prior approval of the proper Department official
in accordance with §§ 16.24 and 16.25 of this part.
***
(c) If oral testimony is sought by a demand in any case or matter in
which the United States is not a party, an affidavit, or, if that is not
feasible, a statement by the party seeking the testimony or by his
attorney, setting forth a summary of the testimony sought and its
relevance to the proceeding, must be furnished to the responsible U.S.
Attorney. Any authorization for testimony by a present or former
employee of the Department shall be limited to the scope of the demand
as summarized in such statement.
{¶28} Thus, 28 C.F.R. 16.22 forbids former employees of the Department of
Justice from testifying in proceedings in which the United States is not a party, without
the prior approval of the department. To obtain prior approval, a party seeking that
testimony must furnish an affidavit or statement summarizing the testimony sought.
28 C.F.R. 16.21(b). The regulations controlling the testimony of former employees are
valid. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 467-469, 71 S.Ct. 416,
95 L.Ed. 417 (1951).
{¶29} However, the state did not raise this argument in the trial court and has
therefore forfeited the issue for appellate review. See State v. Awan, 22 Ohio St.3d
120, 122, 489 N.E.2d 277 (1986) (It is a well-established rule that “an appellate court
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OHIO FIRST DISTRICT COURT OF APPEALS
will not consider any error which counsel for a party complaining of the trial court’s
judgment could have called but did not call to the trial court’s attention at a time when
such error could have been avoided or corrected by the trial court.”). Even assuming
the issue was preserved for appeal, “absent a proffer or questioning that makes the
substance of the excluded evidence apparent, a party cannot argue before an appellate
court that the trial court erred in the exclusion of evidence.” Ellinger v. Ho, 10th Dist.
Franklin No. 08AP-1079, 2010-Ohio-553, ¶ 34; State v. Lovelace, 137 Ohio App.3d
206, 223, 738 N.E.2d 418 (1st Dist.1999) (“We cannot pass on the admissibility of
proffered [evidence] not before us based solely on the representations of counsel as to
what those exhibits contain.”).
{¶30} Although the prosecutor represented to the court that Kessler could
“testify in part without the letter,” the prosecutor did not proffer the specific testimony
that Kessler could provide without the letter, and Kessler did not confirm the accuracy
of that statement. Contrary to the dissent’s finding that Kessler “expressed his
willingness and ability to testify,” the record reflects that Kessler, as a former
employee, never represented to the court that he was willing or able to testify without
the Touhy letter. Instead, he explained to the court that the letter would inform him
of “the extent to which the Touhy letter authorization is granted with respect to the
testimony that I can be expected to give today.” Kessler indicated that he had
contacted the appropriate person at the United States Attorney’s Office “to acquire a
Touhy letter pursuant to [his] testimony.”
{¶31} 5 U.S.C. 301 authorizes federal agencies to adopt regulations that
govern “the conduct of [their] employees ... and the custody, use, and preservation of
[agency] records, papers and property.” 28 C.F.R. 16.22(a) and (c), which govern
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OHIO FIRST DISTRICT COURT OF APPEALS
proceedings in which the United States is not a party, prohibits testimony by former
employees “without prior approval of the proper Department official.” Even if Kessler
expressed a willingness to testify, his testimony was prohibited absent prior approval.
See id.{¶32} The dissent claims that “Sheckles failed to demonstrate that the
Department of Justice did not waive any privilege of nondisclosure provided by its
regulations.” This assertion ignores the fact that the federal regulations require the
department’s approval prior to Kessler’s testimony. “[P]roperly promulgated agency
regulations implementing federal statutes have the force and effect of federal law
which state courts are bound to follow.” Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th
Cir.1989) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 295-296, 99 S.Ct. 1705, 60
L.Ed.2d 208 (1979)). A state court cannot allow a federal official to testify absent
compliance with the regulations requiring agency approval. See id. “Such action
plainly violates both the spirit and the letter of the Supremacy Clause.” Id. Thus,
without prior approval of the proper official in the form of a Touhy letter, the court
could not have compelled Kessler’s testimony, and Kessler gave no indication that he
would testify without the protection of the letter. See id.{¶33} Accordingly, we overrule the first assignment of error.
{¶34} In the second assignment of error, the state argues that the trial court
erred in excluding the compilation video because it adequately authenticated the
video. Video evidence may be admissible under one of two theories: the “pictorial
testimony” theory or the “silent witness” theory. Midland Steel Prods. Co. v. Internatl.
Union, United Auto., Aerospace & Agricultural Implement Workers, Local 486, 61
Ohio St.3d 121, 129, 573 N.E.2d 98 (1991). Under the pictorial-testimony theory,
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence is admissible when a sponsoring witness can testify that it is a fair and
accurate representation of the subject matter, based on that witness’s personal
observation. Id. at 129-130. Thus, the evidence is merely illustrative of a witness’s
testimony. Id. Under the silent-witness theory, the evidence is a “silent witness which
speaks for itself, and is substantive evidence of what it portrays independent of a
sponsoring witness,” and the evidence may be admitted “upon a sufficient showing of
the reliability of the process or system that produced the evidence.” Id. at 129.
{¶35} Here, Evans testified that she co-owned the bar with her husband, and
the bar has multiple cameras that record different angles of the bar. Evans does not
download video from the recording system, and on the night in question, the police
took the hard drive containing all of the recorded video. When shown the compilation
video, Evans confirmed the video depicted the bar, but testified that she had never
seen it before. On cross-examination, she acknowledged that she had a video on her
phone that she had watched a few minutes before testifying, and she agreed that the
video depicted her bar and was from her recording system.
{¶36} Evans did not testify that she was present on the night of the shooting
or that the video was an accurate depiction of the scene of the shooting based on her
personal observations. Therefore, Evans was not a sponsoring witness who testified
based on her personal knowledge, and used the video to illustrate her testimony.
{¶37} Evans did not testify about the operation or reliability of the recording
system and had not reviewed or downloaded the video on the night in question. Thus,
her testimony did not establish the reliability of the bar’s security system and was
inadequate to authenticate the video as a silent witness. Id.
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{¶38} Although she agreed that the video was from her recording system, the
trial judge, who reviewed the video, found that the recording was not produced by the
bar’s recording system. And the prosecutor confirmed that the video was created by
police computer experts.
{¶39} The dissent reasons that Evans’s testimony authenticated the video
under the silent-witness theory, relying on State v. Pickens, 141 Ohio St.3d 462, 2014-
Ohio-5445, 25 N.E.3d 1023, overruled in part on other grounds, State v. Bates, 159
Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475. In that case, the witness’s testimony
based on “personal knowledge about the installation of the surveillance system, the
positioning of the cameras, and the method used for recording the video * * * showed
the reliability of the surveillance system and the videos produced by it.” Id. at ¶ 151.
Here, Evans did not provide any testimony about the recording system to establish its
reliability.
{¶40} However, the recording was not admitted as an exhibit or proffered for
our review. Significantly and as previously discussed, without the evidence, we cannot
determine whether the trial court erred and must presume the regularity of the
proceedings. See Ho, 10th Dist. Franklin No. 08AP-1079, 2010-Ohio-553, at ¶ 34;
Lovelace, 137 Ohio App.3d at 223, 738 N.E.2d 418; State v. Barnes, Slip Opinion No.
2022-Ohio-4486, ¶ 54 (Fischer, J., dissenting) (“[The appellant] has the burden to
ensure that all the evidence that is needed to resolve his appeal is before the court. * *
* So, since we cannot review the gunshot video, we cannot evaluate [appellant’s] claim.
Consequently, regularity of the trial court’s proceedings is presumed, Natl. City Bank
v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000), and we must affirm the
judgment of the [trial court].”).
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{¶41} The state further argues that the court erred by not waiting for an
additional witness to authenticate the video or allowing the state to have a witness
authenticate the video during trial. At the first trial setting, the state requested a
continuance specifically to secure a representative from the bar to authenticate the
video. At that time, the court warned the state that the video would be excluded if the
state failed to produce a witness to authenticate the video. At the second trial setting,
the state produced the testimony of Evans, but she was unable to authenticate the
video, prompting the court to grant the motion in limine to exclude it. Instead of
proceeding to trial and attempting to authenticate the video during the trial, the state
decided to appeal. We cannot and should not speculate as to whether the court would
have allowed the state’s additional witness to testify during the trial, especially when
the court itself characterized the ruling as a motion in limine, which by definition is a
preliminary ruling. We overrule the second assignment of error.
Conclusion
{¶42} Having overruled the state’s two assignments of error, we affirm the
judgments of the trial court.
Judgments affirmed.
BERGERON, J., concurs.
MYERS, P.J., dissents.
MYERS, P.J., dissenting.
{¶43} Because I would hold that Sheckles failed to establish any legal
evidentiary basis for excluding the testimony of Kessler, and because I believe that the
bar owner’s testimony was sufficient to authenticate the videotape, I dissent.
{¶44} Generally, motions in limine are preliminary only, and any definitive
evidentiary ruling needs to await trial. See State v. Edwards, 107 Ohio St.3d 169,
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2005-Ohio-6180, 837 N.E.2d 752, ¶ 17. In the normal course, a court might give a
preliminary ruling on how it might decide any evidentiary issue but would inform
counsel that any objection would need to be renewed during trial when the evidence
was offered, thus giving the court an opportunity to view the evidence in context, to
consider it along with all the other evidence, and to make a final determination. Id.(trial court deciding a motion in limine “is at liberty to change its ruling on the
disputed evidence in its actual context at trial”). That was not done here, and the state
has taken an appeal, arguing that the court’s rulings were final appealable orders
rather than preliminary rulings.
{¶45} I agree with the majority that State v. Thyot, 2018-Ohio-644, 105
N.E.3d 1260 (1st Dist.), allows appeals of rulings on motions in limine if they are the
functional equivalent of the granting of a motion to suppress. See State v. Davidson,
17 Ohio St.3d 132, 135, 477 N.E.2d 1141 (1985) (trial court’s order granting defendant’s
motion in limine was a final appealable order because it rendered the state’s proof “so
weak in its entirety that it destroyed any reasonable possibility of effective
prosecution.”). And because the court below seemed to make a definitive ruling rather
than a preliminary one, I reluctantly agree that we can review it. I caution, however,
that this should be a rare occurrence. Motions in limine are preliminary for a reason,
and we should generally treat them as such. And, I agree with the majority that under
Thyot, we can review these rulings as we would a ruling on a motion to suppress.
Procedural and Factual Background
{¶46} Before I review the merits of the trial court’s rulings, a discussion of the
procedural posture of the case helps put the rulings in context. As the majority noted,
Sheckles was indicted in January 2020 and the case was scheduled for a bench trial on
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OHIO FIRST DISTRICT COURT OF APPEALS
May 12, 2022, when the state first requested a continuance. As the majority points
out, at the May 25 trial date, the court expressed irritation at having to decide issues
relating to Kessler’s testimony and video authentication just prior to trial, going so far
as to accuse the prosecutor of having acted in bad faith. To be fair, though, none of
the delays during the two years and four months that the case was pending prior to the
first trial setting on May 12 were attributable to the state.
{¶47} Remember, the shooting occurred in November 2019, Sheckles was
indicted by the state in January 2020, and at some point, before the first trial setting
on May 12, 2022, he entered a plea in federal court. The case was continued multiple
times due to Sheckles’s request or his absence. Specifically, Sheckles moved to
continue the case three times between his indictment in January 2020 and his
retaining of new counsel in March 2020. It was again continued at his request to April
2, 2020, for plea or trial setting because Sheckles had, according to the court’s entry,
a “holder for APA/federal,” which makes sense given his federal prosecution arising
from the shooting at the Chalet Bar. When Sheckles failed to appear at the April
setting, the court issued a capias for his arrest.
{¶48} Then in November 2021, more than a year and a half after Sheckles had
made a court appearance in the case (and months after the trial judge assumed office),
Sheckles filed in the trial court a petition for a writ of habeas corpus ad prosequendum,
asking the trial court to order his return from the Butler County, Ohio jail where he
was detained, for prosecution on this case in Hamilton County. The trial court
continued the matter until February 16, 2022, for a hearing on Sheckles’s petition. At
that hearing, the court granted Sheckles’s petition, ordered his return to Hamilton
County, and continued the matter at Sheckles’s request until March 18, 2022.
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{¶49} The trial court continued the matter yet again at Sheckles’s request from
March 18 until May 12, 2022, for a bench trial. In April 2022, the state supplemented
its discovery response to notify Sheckles that Zachary Kessler, the former federal
prosecutor in Sheckles’s related federal case, was added to its witness list.
{¶50} It was at that May 12 trial setting that the state first requested a
continuance in the case to secure “a representative from the Chalet Bar where this
incident occurred to authenticate a video,” and the court rescheduled the trial for May
25.
{¶51} Then at the May 25 trial setting, defense counsel told the court that he
had just filed that morning a motion to quash the state’s subpoena of Kessler’s
testimony. The record reflects that the motion was filed at 8:38 a.m. Defense counsel
acknowledged that he had been “put on notice via supplemental discovery [in April
2022] that they intended to call [Kessler] as a witness. At our last trial setting on May
12th the State of Ohio indicated he was going to testify.”
{¶52} Although Sheckles’s written motion to quash Kessler’s subpoena was
based upon a potential violation of federal regulations, defense counsel first argued
the untimeliness of the state’s provision of the federal plea form in discovery. In
addition to his argument that the state did not provide the plea form in discovery until
a week before the rescheduled trial, defense counsel also argued that the plea form
violated federal regulations and that Kessler, not Sheckles, could face sanctions for
testifying:
In reviewing the document that we received, it’s in direct
violation of the Code of Federal Regulations. * * * Zachary Kessler is
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OHIO FIRST DISTRICT COURT OF APPEALS
going to be subject to sanctions if he takes the stand and testifies,
particularly to the federal issues that are here.
(Emphasis added.)
{¶53} As the majority states, the prosecutor informed the court that Kessler
would testify about the federal plea agreement. The prosecutor was specific in his
explanation of the testimony:
[Kessler] took the federal plea in which Mr. Sheckles admitted to
everything that he did in the State’s case that we have charged him here
with. There’s been a full page written statement acknowledged by him
in the plea form.
Your Honor watched the video in chambers. If you recall, he
admits to racking the gun where the full round was found near the stage
and admits to the shell casing back by the back door where the shot was
fired, so it’s a full admission to all of the elements of the State’s case.
{¶54} Defense counsel disagreed on the significance of the plea form.
According to him, “None of what [the prosecutor] just described constitutes attempted
murder or felonious assault. It constitutes possession of ammunition. That’s it. That’s
what he pled to in the federal system.” However, according to the prosecutor, in
addition to the guilty plea, the form contained a statement of facts. The prosecutor
said that he would provide the court with a copy of the plea form: “It’s a rather long
document. The last page contains the statement of facts acknowledged by the
Defendant in Court.” Referring to the plea form, the trial court said, “I wish I’d had
this on Friday to review over the weekend.” But there was no reason that prior to trial
and prior to any filing of a motion by the defense, the prosecutor (or the defense)
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OHIO FIRST DISTRICT COURT OF APPEALS
would have provided trial evidence to the court. Remember, the motion to quash was
just filed on the morning of trial.
{¶55} Despite all the discussion about whether Kessler had a Touhy letter, the
court declared that it could not proceed “until I get that letter.” Remember, the trial
had not yet started. The state may have planned on presenting testimony of the
shooting victim, witnesses from the Chalet Bar, first responders, physicians, and
investigators before it planned to call Kessler to testify about Sheckles’s plea in the
related federal case. The state’s presentation of evidence may have taken a day or more
before it called Kessler. But the court, before trial started and while it was considering
Sheckles’s motion to quash Kessler’s subpoena, required to see the Touhy letter. The
court relied on defense counsel’s assertion that Kessler’s testimony would result in a
“direct violation of” federal regulations and that Kessler, not Sheckles, “is going to be
subject to sanctions if he takes the stand and testifies, particularly to the federal issues
that are here.” Then defense counsel seemed to acknowledge that there were other
areas that Kessler could testify about, that would not require a Touhy letter, when he
stated, “But there are also state issues, that if the Court let’s [sic] him testify we can
get into later on.”
{¶56} Despite defense counsel’s indication that Kessler could testify about
“state issues,” the court was not convinced by the prosecutor’s explanation that Kessler
could “testify in part without the letter.” The court wanted “definites,” saying that “we
might as well go all the way and we’ll discuss whether [Sheckles] is going to file a
Motion in Limine to exclude [Kessler’s] testimony.” The state had not yet called
Kessler as a witness at trial, but the trial court declared prior to trial that Kessler could
not testify without the Touhy letter: “Right now he can’t testify until he gets the letter.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶57} Then the court informed defense counsel that, “[u]nfortunately,” while
Sheckles had no standing to move to quash the subpoena, “[h]e can file a Motion in
Limine so we don’t hear [Kessler’s] testimony.” The proceedings were paused, and at
9:33 a.m., defense counsel filed the first of his two motions in limine to prevent Kessler
from testifying. When the proceedings resumed and the prosecutor declined the
court’s invitation to file a written response to the just-filed defense motion, the court
seemed frustrated again with the prosecutor and defense counsel:
You guys are filing motions on the day of trial so I’m just following the
procedures. He filed it today. I’m giving you the opportunity to file a
response. If you don’t want that opportunity, just say, no, I don’t want
it.
{¶58} Though the prosecutor had just then received the motion in limine
regarding Kessler’s testimony, he said he was prepared to respond orally at that time.
{¶59} Then the discussion turned to authentication of the video. In response
to defense counsel’s objections, the prosecutor replied that defense counsel knew that
the state had the raw footage, that it was in the state’s discovery response, and that
“there’s hours of raw footage.” According to the state’s discovery response, it provided
“disclosure and inspection of the following information by the Defendant pursuant to
[Crim.R.] 16(B),” and listed “Surveillance videos from ‘Chalet’ nightclub.” The
prosecutor indicated that defense counsel had not contacted him to request to inspect
the videos or provided any computer discs for the state to make copies for him. The
prosecutor said that the compilation video was admissible as a summary of
voluminous recordings under the Ohio Rule of Evidence.
{¶60} After some discussion of the video authentication, the court said:
20
OHIO FIRST DISTRICT COURT OF APPEALS
I don’t know what I’m going to permit at this point. I’m kind of
irritated that all of these are being filed and brought to my attention the
day of trial when we have had, I don’t know how many years to develop
this case. Before I even took the bench you guys could have had all of
this taken care of. Now you’re just throwing stuff to me on the date of
trial, which is very irritating. And I think it’s bad faith on the
prosecution not to have all this to you before the day of trial.
***
And I’m just putting that on the record because you know where
I’m going with this.
Replying for himself and for defense counsel, the prosecutor said, “In both of our
defense, this thing was for a couple of years on a plea trac[k].”
{¶61} The proceedings were paused again. The record reflects that defense
counsel filed a second motion in limine to exclude Kessler’s testimony at 10:56 a.m,
asserting that Kessler was prevented from testifying under the Ohio Rules of
Professional Conduct. When the proceedings resumed, however, the court addressed
only the first motion in limine, noted that nearly three hours had passed, and wanted
to know, “Do I have that [Touhy] letter?”
{¶62} Kessler explained that Brandi Stewart, a federal prosecutor, sent the
Touhy letter to him and to the prosecutor’s office, stating “so that I know the extent to
which the Touhy letter authorization is granted with respect to the testimony that I
can be expected to give today.” When Kessler was asked if he had a copy of the Touhy
letter, he said he had the email on his phone. The prosecutor asked again, “You have
it on your phone?,” and Kessler replied, “I do as far as I know,” and the prosecutor
21
OHIO FIRST DISTRICT COURT OF APPEALS
offered to give the court the phone. Defense counsel argued, however, “They should
have had that [Touhy] letter prior to supplementing discovery and let us know that
Mr. Kessler intended to testify.” The court confirmed with defense counsel that, in
addition to his Touhy argument, he was arguing that the state had failed to provide
the federal plea form in discovery in a timely manner: “Not only barring [Kessler’s]
testimony, but there was a document that they’re going to present that was not given
to you until Friday; is that correct?”
{¶63} The prosecutor argued in response:
Your Honor, [defense counsel] has known about this all along.
The Defendant pled himself over a year ago. [Defense counsel] has
known about this all along. There’s no ambush here, no surprise.
There’s no prejudice. He’s got the entry. He’s had it for several days
now. And under Lakeland, the Court should do nothing more than
continue the case for him to review it.
No doubt the prosecutor was referring to the Supreme Court’s decision in Lakewood
v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), which held that a trial court
must impose the least severe sanction consistent with the rules of discovery for a
discovery violation. And no doubt Sheckles’s federal plea could not have come as a
surprise to Sheckles, since it was his own plea.
{¶64} The trial court responded, “Motion to exclude Mr. Kessler’s testimony
and the document presented by Mr. Kessler will be granted.”
Kessler Testimony
{¶65} The trial court granted Sheckles’s motion in limine to exclude Kessler’s
testimony, including his testimony about Sheckles’s plea. A motion in limine is a
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OHIO FIRST DISTRICT COURT OF APPEALS
request that the court exclude evidence or witness testimony which the movant
believes to be improper. Columbus v. Burgess, 10th Dist. Franklin No. 19AP-392,
2021 Ohio App. LEXIS 2154, 7 (June 29, 2021); State v. Winston, 71 Ohio App.3d 154,
158, 593 N.E.2d 308 (2d Dist.1991). At the hearing on a motion in limine, the burden
of proof is on the movant who seeks to exclude the evidence. State v. McCormick, 5th
Dist. Stark No. 2000CA00204, 2001 Ohio App. LEXIS 430, 9 (Feb. 5, 2001). In this
case, though, rather than put the burden of proof on Sheckles, the movant seeking to
exclude Kessler’s testimony and the federal plea form, the trial court improperly
shifted the burden to the state to prove, prior to trial, that the evidence should not be
excluded. This backward approach contributed to the trial court’s erroneous ruling.
{¶66} The trial court in essence ruled that it would not let Kessler testify unless
the state produced a Touhy letter prior to trial. I would hold that this was error.
{¶67} To exclude a witness’s testimony, there must be an evidentiary basis to
do so. So we start with the Ohio Rules of Evidence. I find nothing in the rules that
would preclude Kessler from testifying.
{¶68} In general, every person is competent to be a witness unless the rules
provide otherwise. See Evid.R. 601(A). Under Evid.R. 601(B), for example, a person
is disqualified to testify under certain circumstances, none of which applied in this
case. Specifically, Evid.R. 601(B) disqualifies a witness who is incapable of expressing
himself or herself or of understanding the duty to tell the truth, and in certain
circumstances, a spouse testifying against the other spouse, an officer enforcing traffic
laws, or an expert in a medical claim. Sheckles raised no challenge below or on appeal
to Kessler’s competency to testify.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} The Rules of Evidence and Ohio law also recognize some limited
privileges that can be asserted to prevent a witness from testifying. The privilege
belongs to the person who possesses it, and not someone else. Here, if any “privilege”
existed that could be invoked, it was Kessler who had the ability to invoke the privilege,
not Sheckles, and Kessler made no such claim of privilege.
{¶70} Even if we were to consider that Kessler properly invoked a privilege
against self-incrimination or otherwise, under Evid.R. 501, the privilege of a witness
is “governed by statute enacted by the General Assembly or by principles of common
law as interpreted by the courts of this state in the light of reason and experience.” To
the extent that the federal regulations cited by Sheckles conferred upon the
Department of Justice (“Department”) the privilege of nondisclosure, the privilege was
the Department’s to waive, and the burden was on Sheckles to prove that the
Department did not waive its privilege (or that Kessler did not waive his privilege
against self-incrimination). Sheckles, though, failed to carry his burden.
{¶71} In United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95
L.Ed. 417 (1951), an employee of the Department of Justice refused to obey a subpoena
duces tecum ordering production of papers of the Department, based upon a
regulation issued by the Attorney General. Touhy at 463. The trial court found the
employee in contempt of court for refusing to produce the subpoenaed records. Id. at
465. The Supreme Court affirmed the reversal of the trial court’s judgment and upheld
the validity of a federal regulation that conferred upon the Department of Justice the
privilege of nondisclosure unless there had been a waiver of the privilege by the
Attorney General. Id. at 465, 470. Because the Department employee had not been
questioned on his willingness to submit the subpoenaed material to the court as to its
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OHIO FIRST DISTRICT COURT OF APPEALS
materiality and whether it should be disclosed, the Supreme Court did not reach the
issue of how far the Department did or could waive any claimed privilege. Id. at 468.
{¶72} Here, the privilege of nondisclosure belonged to the Department of
Justice. See id. at 465. Kessler did not assert the privilege on behalf of the
Department—on the contrary, it is absolutely clear from the record that he was willing
and able to testify. But the trial court refused to hear him.
{¶73} Moreover, the burden of showing that testimony or evidence ought to
be excluded under a claimed privilege is on the party seeking to exclude it. See State
v. Brunson, Slip Opinion No. 2022-Ohio-4299, ¶ 49 (attorney-client privilege);
Waldmann v. Waldmann, 48 Ohio St.2d 176, 178, 358 N.E.2d 521 (1976) (attorney-
client privilege); Triplett v. Univ. Hosps. Cleveland Med. Ctr., 8th Dist. Cuyahoga No.
111271, 2022-Ohio-3553, ¶ 12 (party claiming peer-review-committee privilege must
establish existence of committee that meets statutory definition and show that records
are within scope of committee’s review). Here, though, the trial court put the burden
on the state to prove that the Department’s nondisclosure privilege was not waived,
instead of putting the burden on Sheckles, the party seeking to exclude the
Department employee’s testimony.
{¶74} The federal regulations cited by Sheckles in his motion in limine (and
quoted by the majority) generally prohibit employees or former employees of the
Department of Justice from testifying in a case in which the United States is not a
party, without prior approval of the Department. See, e.g., 28 C.F.R. 16.22(A).
However, Sheckles cited no regulation or other authority for the proposition that the
Touhy letter or authorization by the Department must be provided to the defense or
to the trial court prior to the federal employee’s testimony. And the majority cites no
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OHIO FIRST DISTRICT COURT OF APPEALS
legal authority for its holding that Kessler’s testimony was properly excluded because
the Touhy letter was not produced.
{¶75} Instead, the majority asserts, “Without citing any legal authority, the
state claims that the federal regulation does not prohibit a witness from testifying,
rather, it merely subjects an employee to possible consequences from the Department
of Justice if the employee testifies without prior authorization.” The majority
concludes that “the state did not raise this argument in the trial court and therefore
has forfeited the issue for appellate review.” But Sheckles himself put the issue
squarely before the trial court when he argued, “Zachary Kessler is going to be subject
to sanctions if he takes the stand and testifies.” So I disagree that the state cannot
raise the same argument on appeal because the issue was obviously considered by, and
accepted without question by, the trial court. Surely, the potential for Kessler’s
sanctioning was the only reason that the court excluded his testimony because
Sheckles never once said how his rights to a fair trial would be impacted by Kessler’s
testifying without a Touhy letter.
{¶76} Under 28 C.F.R. 16.22(c), a party seeking oral testimony in a case in
which the United States is not a party must furnish to the United States Attorney an
affidavit or statement setting forth a summary of the testimony sought and its
relevance to the proceeding. The requirement for such an affidavit or statement exists
for oral testimony but does not apply to demands for material or information in the
files of the Department of Justice or material acquired as part of the performance of
that person’s official duties. See 28 C.F.R. 16.22(a). Instead, when information other
than oral testimony is sought by a demand, the responsible United States Attorney
must request a summary of the information sought and its relevance to the proceeding.
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OHIO FIRST DISTRICT COURT OF APPEALS
See 28 C.F.R. 16.22(d). The regulations say nothing about the admissibility at trial of
the testimony or materials without prior authorization, and they do not say that
authorization must be provided to a trial court or to a party that did not issue the
demand or subpoena to the Department.
{¶77} We must keep in mind that the defense did not raise the issue of the
Touhy letter until the morning of trial on May 25 when it filed the motion to quash,
which triggered the scramble for the letter that morning. Nothing cited by Sheckles
indicated that the trial court was required or even entitled to know if the United States
Attorney had approved Kessler’s oral testimony and document production. If, as
defense counsel argued, Kessler would face sanctions, that concern would be Kessler’s
alone and not the concern of Sheckles or the trial court (especially where Kessler
expressed his willingness and ability to testify). Nonetheless, the state and Kessler still
made the effort to get the letter emailed to the prosecutor’s office and to Kessler, but
the court had no interest in seeing if Kessler had the authorization on his phone. And
Sheckles failed to demonstrate that the Department of Justice did not waive any
privilege of nondisclosure provided by its regulations. The representations to the
court by Kessler and the prosecutor certainly indicated otherwise. The prosecutor
began to put on the record that he had the Touhy letter, but the court interrupted to
ask, “Where is it?” The prosecutor replied, “It was here in the courtroom when you
asked for it.” The prosecutor also said, “Mr. Kessler had it on his phone and had it
here and was ready to go.” (Although the transcript attributes the last remark to one
made by Kessler himself, we can safely presume that the prosecutor said that and that
Kessler likely did not refer to himself as “Mr. Kessler.”)
27
OHIO FIRST DISTRICT COURT OF APPEALS
{¶78} The bottom line is that I do not think there was any legal basis for the
trial court to rule that Kessler could not testify. And the majority has cited none.
Authenticity of the Video
{¶79} In addition, I believe that the trial court erred by excluding the
compilation video on the ground that the state failed to authenticate it.
{¶80} Under Evid.R. 901(A), authentication as a condition precedent to
admissibility requires evidence sufficient to support a finding that the matter in
question is what the proponent claims. An acceptable method of authentication is
testimony by a witness with knowledge “that a matter is what it is claimed to be.” See
Evid.R. 901(B)(1). “Authentication is ‘a very low threshold, which is less demanding
than the preponderance of the evidence.’ ” State v. Patterson, 1st Dist. Hamilton No.
C-170329, 2018-Ohio-3348, ¶ 13, quoting State v. White, 4th Dist. Scioto No.
03CA2926, 2004-Ohio-6005, ¶ 61. The proponent of the evidence must demonstrate
a “reasonable likelihood” that the evidence is authentic. Thyot, 2018-Ohio-644, 105
N.E.3d 1260, at ¶ 21. In addition, “[a]ny defects in the testimony go to the weight of
the evidence, not its authenticity.” Id.{¶81} The majority concludes that the state’s failure to proffer the video for
our review prevents us from concluding that the trial court erred in excluding it.
However, pursuant to Evid.R. 103(A)(2), error may be predicated upon a ruling
excluding evidence “where the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions were asked.” While
clearly a proffer of excluded evidence would be the better practice, it is not always
required to preserve for appellate review, an evidentiary ruling alleged to be in error.
State v. Gilmore, 28 Ohio St.3d 190, 191, 503 N.E.2d 147 (1986); Ellinger v. Ho, 10th
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist. Franklin No. 08AP-1079, 2010-Ohio-553, ¶ 34. It is clear from the record that
the challenged video was a compilation video created by police from raw footage
obtained from the bar’s surveillance cameras.
{¶82} Remember that the case was continued from May 12 to May 25 so that
the prosecutor could bring in “a representative from the Chalet Bar where this incident
occurred to authenticate a video.” Then, on the morning of trial on May 25, when the
court learned that the bar owners were present to authenticate the video, defense
counsel objected on two grounds. First, he argued that their names had not been
provided in discovery. Second, he argued that the only video he had been provided
was the compilation video produced by the police, and not by the bar owners.
{¶83} The state had the bar owners present, as it indicated it would at the last
trial setting. It was not until the morning of trial on May 25 that the state found out
that Sheckles would attack, prior to trial, the authentication of the video on the ground
that police had prepared the summary video. The trial court made it clear, after the
bar owner testified, that it did not believe that her testimony was sufficient to
authenticate the video.
{¶84} When the court said, “I need the person who actually made the
compilation video to tell me how they made that video,” the prosecutor said he would
arrange to get the person to court. But in another expression of its frustration, the
court said:
I’m going to put this on the record. What is it about the State
that they think they can just dictate how the court process flows? You
don’t bring in the witnesses you need and then when you realize you do
need somebody, you say, I’ll just get a continuance and bring somebody
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OHIO FIRST DISTRICT COURT OF APPEALS
over. No one is ever ready until the Court questions where is this
witness that I need to have this actual hearing that was scheduled for
9:00 and it is now 12:30.
{¶85} The prosecutor reminded the court that “this is a motion that was filed
at 10:00 this morning,” and the court countered, “Based on evidence you produced
shortly.” The prosecutor reiterated, “It’s our position this witness has authenticated
the video and that’s all that’s necessary.” The court said that the bar owner did not
produce the video. Things got testy again:
[PROSECUTOR]: I put her on and I have the other witness coming
because the Court wants the other witness.
THE COURT: I don’t want the other witness. If you don’t want her, I’m
fine. I don’t need any other witness. I’m fine. I can make my decision
with this one witness.
[PROSECUTOR]: I think you’re telegraphing your decision, so we would
like to bring the other witness.
***
THE COURT: The sole purpose was to bring in a witness to authenticate
this video and the witness here in court can’t authenticate the video. Now
I have to wait yet another, I don’t know how long, for this other person
to appear. So the Motion in Limine will be granted. The video will be
excluded.
{¶86} The majority brushes aside the state’s argument on appeal that the court
should have allowed the state to call the officer who produced the video. Incredibly,
the majority says that we can’t speculate as to whether the trial court would have
30
OHIO FIRST DISTRICT COURT OF APPEALS
allowed the state’s additional witness to testify during trial because, “[i]nstead of
proceeding to trial and attempting to authenticate the video during the trial, the state
decided to appeal.” But the trial court did not simply exclude the testimony of the
additional witness who created the compilation video—the court excluded the video
itself, which the prosecutor described as a “critical piece[] of evidence.” In other
words, the court suppressed the video, so obviously the state could not have, as the
majority suggests, tried to authenticate the video during trial. The video was excluded
from evidence before the trial even started.
{¶87} Certainly, the state could not risk proceeding to trial without the video
and potentially facing Sheckles’s acquittal for insufficient evidence. The Double
Jeopardy Clause “protects against a second prosecution for the same offense after
acquittal.” Bravo-Fernandez v. United States, 580 U.S. 5, 9, 137 S.Ct. 352, 196
L.Ed.2d 242 (2016), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969). And “[t]he Government ‘cannot secure appellate review’
of an acquittal, * * * even one ‘based upon an egregiously erroneous foundation.’ ” Id.
at 10, quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717(1978). The reason we allow the state to appeal the granting of a pretrial motion in
limine excluding evidence is because it “has rendered the state’s proof with respect to
the pending charge so weak in its entirety that any reasonable possibility of effective
prosecution has been destroyed.” Crim.R. 12(K)(2); Davidson, 17 Ohio St.3d at 135,
477 N.E.2d 1141.
{¶88} The majority says that the bar owner did not testify about the operation
or reliability of the recording system, and that she had not reviewed or downloaded
the video. I disagree. In addition to testifying about the bar’s multiple cameras that
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OHIO FIRST DISTRICT COURT OF APPEALS
record at various angles, she testified that she did not download the video because the
police took the hard drive that contained all of the raw footage from that night.
Obviously, she would not have had to “download” it if it was on the drive already. In
addition, she clearly testified that she had reviewed the video. I include nearly all of
the bar owner’s testimony because in my mind it establishes the very low burden of
authentication:
[DEFENSE COUNSEL]: Ma’am, do you recognize this video?
[THE WITNESS]: I do.
Q. What is it a video of?
A. This is our front patio, the entrance of the bar.
Q. Okay. I’m going to press Play[.] * * * Okay, ma’am, when you
downloaded the camera footage do you have multiple cameras in your
bar?
A. Yes.
Q. Okay. Each camera records a different angle?
A. Yes.
Q. And you personally don’t cut and splice those videos together, do
you?
A. No.
Q. So if an incident were to happen at your bar and the police come
you download that video, correct?
A. I don’t. They actually came and just took the equipment.
Q. Okay. So the police on November the 29th came to your bar?
A. Detectives, police, yes, somebody did.
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OHIO FIRST DISTRICT COURT OF APPEALS
Q. And they collected the equipment?
A. Umm-hmm.
Q. Is that equipment, is that like a hard drive?
A. It is a hard drive.
Q. And the hard drive contains all the raw footage from this night?
A. Yes.
THE COURT: I just have one question. This is the determining
factor. Have you ever seen this compilation video?
THE WITNESS: This?
THE COURT: Yes.
THE WITNESS: Like put the whole video, no.
THE COURT: That’s all I need to know. You can’t say that you’ve
seen this whole video?
THE WITNESS: The whole video or –
THE COURT: This compilation the was it’s presented in court
today.
THE WITNESS: No.
[PROSECUTOR]: You have a video of this on your phone?
[THE WITNESS]: I do.
Q. And is that the outside of your bar?
A. Yes, it is.
Q. On that date?
A. Yes.
Q. And you had occasion to watch this a few minutes ago?
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OHIO FIRST DISTRICT COURT OF APPEALS
A. Yes.
Q. Did you watch the whole thing?
A. Yes.
Q. Did it show the inside of your bar on that date in time?
A. Yes, it did.
Q. And it showed a couple different scenes from inside the bar, four
different cameras?
A. Yes.
Q. And were those authentic videos of your bar and your recording
system from that night?
A. They were.
{¶89} I believe that the bar owner’s testimony easily crossed the very low
threshold to authenticate the video under the silent-witness theory because the
evidence showed the reliability of the camera system that produced the evidence. In
a similar case, State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023,
overruled in part on other grounds, State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-
634, 149 N.E.3d 475, ¶ 35, a property manager testified that he maintained 140
surveillance cameras on the property at an apartment complex. Pickens at ¶ 141. The
state presented a video taken outside the defendant’s apartment near the time of the
offense, as well as a “surveillance video that spliced together different surveillance
videos” from the property. Id. at ¶ 142-143. As to the spliced videos, the property
manager testified that he provided multiple surveillance videos to the police and that
the police spliced together multiple clips into a single disc “in an effort to make it better
for a viewing audience.” Id. at ¶ 144. The manager reviewed the spliced videos and
34
OHIO FIRST DISTRICT COURT OF APPEALS
testified that it represented a true and accurate reflection of the various videos that he
had provided to the police.
{¶90} The Supreme Court held that the spliced videos were admissible under
the “silent witness” theory because the manager testified from personal knowledge
about the installation of the surveillance system, the positioning of the cameras, and
the method used for recording the videos. Id. at ¶ 151. The court held that “[n]o expert
was required to substantiate the reliability of the surveillance system[,]” and that the
spliced videos were properly authenticated where the state adequately showed the
reliability of the surveillance system and the videos it produced. Id.
{¶91} We have similar authentication testimony in this case. The bar owner
testified from personal knowledge that the raw footage from the bar’s multiple
cameras was contained on the hard drive collected by police, that she watched the
entire compilation video which showed different scenes from different cameras in the
bar, and that they were authentic videos of her bar and her recording system from the
night of the offense. This testimony easily met the low threshold for authentication.
{¶92} The trial court, though, did not think so:
She has not authenticated the video. It’s a video of a video. But
she did not produce this video. Her equipment did not produce this
video. It’s a compilation of raw footage that she provided from her hard
drive, so she did not produce this video. She doesn’t know how it was
cut or spliced or put together.
{¶93} Even though the trial court seemed satisfied that the bar’s original raw
footage from its hard drive met the authenticity test, the court excluded the
compilation video created from that footage because it was “a video of a video.”
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OHIO FIRST DISTRICT COURT OF APPEALS
However, Evid.R. 1006 allows the contents of voluminous recordings “which cannot
conveniently be examined in court” to be presented in summary form. For a summary
to be admissible, the “originals, or duplicates, shall be made available for examination
or copying, or both, by other parties at a reasonable time and place.” There was no
allegation that the hours-long raw footage was altered in any way other than being
reduced to a compilation for viewing purposes. And the prosecutor represented that
the raw video footage was available for examination. The trial court erred by excluding
the video prior to trial.
{¶94} I would reverse the judgments of the trial court and remand this cause
for further proceedings. Respectfully, I dissent.
Please note:
The court has recorded its own entry this date.
36