State v. Ladson , 2022 Ohio 3670 ( 2022 )

[Cite as State v. Ladson, 2022-Ohio-3670.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111211
v. :
JAMES LADSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 13, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-656142-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristin M. Karkutt and Alicia Harrison,
Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano and Marcus Sidoti, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant James Ladson (“Ladson”) appeals from his
conviction for murder and other crimes following a jury trial. For the reasons that
follow, we affirm.
Factual and Procedural History
On January 27, 2021, a Cuyahoga County Grand Jury indicted
Ladson on one count of murder in violation of R.C. 2903.02(A), one count of
murder in violation of R.C. 2903.02(B), one count of voluntary manslaughter in
violation of R.C. 2903.03(A), one count of felonious assault in violation of
R.C. 2903.11(A)(1), one count of felonious assault in violation of
R.C. 2903.11(A)(2), and one count of having weapons while under disability in
violation of R.C. 2923.13(A). With the exception of the having weapons while under
disability charge, each count carried one- and three-year firearm specifications.
Before trial began, the state dismissed the voluntary manslaughter
charge. Ladson waived his right to a jury trial on the having weapons while under
disability charge, and the case proceeded to a jury trial on the remaining counts on
November 29, 2021.
These charges arose from a July 25, 2020 incident in which Allante
Riggins (“Riggins”) was shot and killed in the parking lot of Eagle Fresh Mart on
Kinsman Road and East 75th Street in Cleveland, Ohio. That day, Riggins was
helping his sister Arisia move out of her home, located around the corner from
Eagle Fresh Mart. Shortly after 8 p.m. that evening, Riggins went to Eagle Fresh
Mart. Riggins, who had recently been diagnosed with schizophrenia, began having
what appeared to be a schizophrenic episode in the parking lot. Security footage
from Eagle Fresh Mart shows Riggins pacing in the parking lot and appearing
agitated. Around 8:15 p.m., security footage showed a dark blue Infiniti sedan pull
into the parking lot. A man exited the vehicle from the rear passenger door. Several
minutes later, the driver, subsequently identified as Ladson, exited the vehicle.
Ladson did not enter the store and instead stood on the edge of the parking lot near
his vehicle, appearing to have a conversation with several other men in the parking
lot. Around 8:30 p.m., Ladson crossed the parking lot to speak to the driver of a
Jeep parked in front of the store. Ladson stood inside the open driver door of the
Jeep and appeared to engage in a transaction with the driver of the Jeep, who was
sitting in the driver’s seat of the Jeep. Ladson then returned to his car. Ladson
appeared to get back into the driver’s seat of the Infiniti while the passenger
remained standing outside the car.
Several minutes later, Riggins reappeared at the edge of the parking
lot, near where the Infiniti was parked. Riggins walked past the Infiniti and entered
the store. Shortly thereafter, Riggins exited the store and walked the length of the
parking lot back towards the Infiniti. Riggins appeared to exchange words with the
passenger of the Infiniti, who then got back into the car. Riggins remained near the
Infiniti and appeared to be shouting at the vehicle. Security footage showed Riggins
begin to walk out of the parking lot and away from the rear of the Infiniti, but he
turned around to approach the vehicle again, appearing to lunge at the vehicle in
an agitated manner. This continued for several minutes, with Riggins pacing
around the vehicle. At approximately 8:39 p.m., Ladson and the front passenger of
the Infiniti exited the vehicle and confronted Riggins. The passenger walked
around the rear end of the vehicle with his right arm raised toward Riggins.
Meanwhile, Riggins approached Ladson on the driver’s side of the vehicle and
Ladson raised his right arm and appeared to shoot Riggins in the face. Riggins
collapsed, and Ladson and the passenger got back into the Infiniti and sped out of
the parking lot. The parking lot, which had been relatively full until this point,
quickly began to empty.
Soon after the shooting, Arisia heard that her brother had been shot
outside the store. Security footage shows Arisia and her boyfriend pull into the
parking lot near where Riggins was shot. Shortly thereafter, Cleveland police
arrived at the scene.
At trial, the state called Riggins’s sisters, Arisia and Adora Riggins,
who both testified as to their brother’s mental health and the events of July 25,
2020, before Riggins went to Eagle Fresh Mart. The state also called one of the
responding officers, Cleveland police officer Brooklyn Barnes (“Barnes”), who
testified that upon arriving to the scene, she observed Riggins face-down in the
parking lot. Barnes testified that she turned Riggins over and observed a gunshot
wound to his head. Barnes began administering first aid and CPR while her partner
attempted to control the other people on the scene. Several minutes later, EMS
arrived and began giving Riggins medical attention.
The state also called Cleveland police detectives Zara Hudson
(“Hudson”) and Richard Tusing (“Tusing”), who testified as to their respective
involvement with the investigation in this case. Hudson was initially assigned to
the case, and he responded to the scene on July 25, 2020. Hudson canvassed the
scene for evidence and ultimately made contact with the store clerk and viewed and
downloaded the security footage showing the parking lot before, during, and after
the incident. Hudson prepared an initial report in this case, but the case was
ultimately turned over to Tusing once it became clear that Riggins had died.
Tusing testified that when the case was assigned to him, Ladson had
been identified as a person of interest in the case. He went on to testify that upon
being assigned to the case through his role in the homicide unit, he reviewed the
file, including the security video, and subsequently obtained information on Ladson
and the Infiniti from the Bureau of Motor Vehicles. Tusing determined that a 2008
Infiniti M35 was registered to Ladson at the time of the shooting. Tusing reviewed
body camera footage from a traffic stop of Ladson unrelated to this incident.
Ultimately, Tusing was able to identify Ladson as the driver of the Infiniti who had
shot Riggins.
The state also called various expert witnesses to testify about the
limited physical evidence in this case. Dr. Dan Galita (“Dr. Galita”), a forensic
pathologist and medical examiner at the Cuyahoga County Medical Examiner’s
Office, testified that he completed an autopsy of Riggins. Dr. Galita testified that
the cause of Riggins’s death was a gunshot wound to the left cheek with skeletal,
visceral, and soft tissue injuries, and the manner of death was homicide. The state
also presented evidence that the nature of Riggins’s injuries, including stippling on
his face, meant that the shooter fired at Riggins in close range.
Following the state’s case, Ladson made a Crim.R. 29 motion for
acquittal, which the trial court denied. Ladson called one witness on his behalf.
Cheri Klouda (“Klouda”) testified that she and her husband owned and operated
Klouda Automotive, a business located on Carnegie Avenue in Cleveland, Ohio that
did repairs and bodywork to vehicles. Klouda testified that she is in charge of the
paperwork and recordkeeping for the business. Klouda testified that her husband
did various work on a 2008 Infiniti G35 for Ladson. Defense counsel introduced
the receipt for this work showing that Ladson brought his vehicle to Klouda
Automotive on July 18, 2020, and retrieved his vehicle on August 1, 2020, after
paying in full for the services. Klouda testified that she remembered the vehicle
being on the business’s lift at that time because they had difficulty sourcing some of
the parts needed for the work.
Defense counsel then renewed its Crim.R. 29 motion, and the court
denied this motion. Defense counsel also requested that the court instruct the jury
on voluntary manslaughter, and the court denied the request.
On December 3, 2021, the jury returned its verdict. The jury found
Ladson not guilty of murder in violation of R.C. 2903.02(A). The jury found Ladson
guilty of murder in violation of R.C. 2903.02(B), both counts of felonious assault,
and the corresponding firearm specifications. The court found Ladson guilty of
having weapons while under disability.
On January 10, 2022, the court held a sentencing hearing. Defense
counsel and the assistant prosecuting attorney addressed the court. Riggins’s sister
Arisia also addressed the court. The court sentenced Ladson to life in prison with
the possibility of parole after 15 years, consecutive to a three-year term for the
firearm specification. The court also sentenced Ladson to 36 months on the having
weapons while under disability charge, to be served concurrently.
Ladson appeals, presenting five assignments of error for our review:
I. The trial court erred by admitting the video and photographic
evidence over appellant’s objection and in violation of Evid.R. 803(6)
and Evid.R. 901(C).
II. The trial court erred by denying appellant’s request for an
instruction on voluntary manslaughter.
III. The trial court erred when it denied appellant’s motion for acquittal
under Crim.R. 29 because the state failed to present sufficient evidence
to establish beyond a reasonable doubt the elements necessary to
support the convictions.
IV. Appellant’s convictions are against the manifest weight of the
evidence.
V. The admission of the lead detective’s narration and video footage
and his opinions that the images show defendant-appellant engaging
in the offenses charged in the indictment, violated the rules of evidence,
invaded the province of the jury, and deprived him of his right to due
process and a fundamentally fair jury trial under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.
Legal Analysis
I. Video and Photographic Evidence
In Ladson’s first assignment of error, he argues that the trial court
erred by admitting video and photographic evidence over defense counsel’s
objection and in violation of Evid.R. 803(6) and 901.
The decision whether to admit or exclude evidence is subject to
review under an abuse of discretion standard, and reviewing courts will not disturb
evidentiary rulings absent a clear showing that the trial court abused its discretion
and materially prejudiced a party. State v. Barnes, 8th Dist. Cuyahoga No. 104045,
2017-Ohio-383, ¶ 17, citing State v. Lyles, 42 Ohio St.3d 98, 99, 537 N.E.2d 221(1989). The term abuse of discretion implies that the court’s attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 450 N.E.2d 1140 (1983); Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-
3304, 187 N.E.3d 463.
With respect to video evidence, Ladson objected to the admission of
state’s exhibit Nos. 61, 62, and 63. Exhibit No. 61 is store surveillance footage from
approximately 8:00 p.m. to 8:30 p.m., exhibit No. 62 is a continuation of store
surveillance footage beginning at approximately 8:30 p.m., and exhibit No. 63 is a
zoomed in excerpt of the surveillance footage in exhibit No. 62 showing the
shooting. Ladson objected to the admission of this footage, arguing that no one
from the store testified as to how the videos were prepared or whether they were
authentic. With respect to photographic evidence, Ladson objected to state’s
exhibit Nos. 69-77, which were screenshots of a man standing near a vehicle that
Adora Riggins provided to law enforcement. Adora testified that she had a personal
relationship with one of the store employees, and he provided them to her after the
incident. Ladson objected to the admission of these photos, arguing that no
evidence was presented showing whether the photographs were authentic or
accurate.
In this appeal, Ladson argues that the videos and photos constitute
hearsay because they were introduced to prove that a person in the video committed
an offense consistent with Tusing’s own interpretation and narration of what the
videos and photos showed.
Evid.R. 901 provides, in relevant part:
(A) General provision. The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support that the matter in question is what its
proponent claims.
(B) Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is
what it is claimed to be.
“‘The authentication requirement of Evid.R. 901(A) is a low threshold that does not
require conclusive proof of authenticity, but only sufficient foundation evidence for
the trier of fact to conclude that the evidence is what its proponent claims it to be.’”
State v. Heard, 8th Dist. Cuyahoga No. 110722, 2022-Ohio-2266, ¶ 31, quoting State
v. Toudle, 8th Dist. Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 21, citing Yasinow v.
Yasinow, 8th Dist. Cuyahoga No. 86467, 2006-Ohio-1355, ¶ 81.
Here, while Ladson correctly points out that none of the testifying
witnesses observed the shooting itself, we disagree that the evidence was not
properly authenticated. Video and photographic 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., Aero. & Agricultural
Implement Workers, Local 486, 61 Ohio St.3d 121, 129, 573 N.E.2d 98 (1991).
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.In this case, the detective who responded to the scene testified that
he personally obtained the surveillance footage from the business. He also testified
that the footage itself accurately reflected the scene of the shooting. This testimony
is sufficient to have properly authenticated the video evidence. State v. Freeze, 12th
Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 68.
With respect to the screenshots provided to law enforcement by
Riggins’s sister Adora, we find that they also satisfy the low threshold for
authentication. Adora testified that she received the messages containing the
screenshots from a store employee. This is sufficient to authenticate the photos.
State v. Primous, 2020-Ohio-912, 152 N.E.3d 1002, ¶ 22 (8th Dist.).
Because the video and photo evidence in question was properly
authenticated pursuant to Evid.R. 901, we cannot conclude that the trial court
abused its discretion in admitting this evidence over defense objection. Therefore,
Ladson’s first assignment of error is overruled.
II. Jury Instruction
In Ladson’s second assignment of error, he argues that the trial court
erred by denying his request for a jury instruction on voluntary manslaughter.
Specifically, he argues that the grand jury concluded there was probable cause to
charge Ladson with voluntary manslaughter and that the evidence presented at trial
supported an instruction on voluntary manslaughter.
A trial court’s decision to grant or deny a requested jury instruction
is reviewed under an abuse of discretion standard. State v. Williams, 8th Dist.
Cuyahoga No. 90845, 2009-Ohio-2026, ¶ 50. Specifically, a defendant charged
with murder is entitled to an instruction on voluntary manslaughter when the
evidence presented at trial would reasonably support both an acquittal on the
charged crime of murder and a conviction for voluntary manslaughter. State v.
Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992), citing State v. Tyler, 50
Ohio St.3d 24, 37, 553 N.E.2d 576 (1990).
Voluntary manslaughter as laid out in R.C. 2903.03(A) provides:
No person, while under the influence of sudden passion or in a sudden
fit of rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to incite the
person into using deadly force, shall knowingly cause the death of
another or the unlawful termination of another’s pregnancy.
Ladson argues that the evidence in this case shows that Riggins “was engaged in a
schizophrenic episode, he was highly agitated, appeared to be yelling, and lunging
towards the driver of the suspect video.” Ladson argues that Riggins’s behavior
provoked both the passenger and driver
We agree that the evidence reflects that Riggins was behaving in an
agitated manner and appeared at various points to be shouting and lunging at the
Infiniti. Further, based on the testimony of Riggins’s sisters regarding his
schizophrenia diagnosis and lack of compliance with his medication, it is likely that
he was experiencing a schizophrenic episode.
We disagree with Ladson that this constitutes sufficient evidence to
warrant a jury instruction on voluntary manslaughter. We agree with the trial
court’s statement that Riggins’s behavior constituted insufficient provocation for
purposes of R.C. 2903.03(A). Further, Ladson argues that “mutual combat”
situations like the incident in this case are “classic voluntary manslaughter
situations” according to the Ohio Supreme Court. Shane, 63 Ohio St.3d at 635, 590
N.E.2d 272. Ladson does not attempt to define mutual combat or otherwise explain
his assertion that this situation was one of mutual combat. Our review of the record
shows that while Riggins was clearly agitated, Riggins and Ladson were not
engaged in mutual combat. Indeed, until moments before Riggins was killed,
Ladson was in the driver’s seat of his vehicle with the door closed and nothing was
preventing him from driving away. Instead, Ladson elected to exit the vehicle and
approach Riggins, immediately shooting him in the face at close range.
In light of this evidence, we cannot say that the trial court abused its
discretion in denying Ladson’s request to issue a jury instruction on voluntary
manslaughter. Therefore, Ladson’s second assignment of error is overruled.
III. Sufficiency of the Evidence
In his third assignment of error, Ladson argues that the trial court
erred when it denied his motion for acquittal under Crim.R. 29 because the state
failed to present sufficient evidence to establish beyond a reasonable doubt the
elements necessary to support the convictions. Specifically, Ladson asserts that the
state failed to establish the identity of the individual depicted shooting Riggins in
surveillance footage. Ladson further points to the absence of certain evidence, such
as eyewitness testimony, cell phone data placing Ladson at the scene, any
explanation as to how Ladson became a person of interest in the case, any DNA
evidence, or any physical or forensic evidence tying Ladson to the scene or the
incident.
Crim.R. 29(A) provides that a court “shall order the entry of the
judgment of acquittal of one or more offenses * * * if the evidence is insufficient to
sustain a conviction of such offense or offenses.” “Because a Crim.R. 29 motion
questions the sufficiency of the evidence, ‘[w]e apply the same standard of review
to Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.’”
Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37,
quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386,
¶ 37.
A sufficiency challenge requires a court to determine whether the
state has met its burden of production at trial and to consider not the credibility of
the evidence but whether, if credible, the evidence presented would sustain a
conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
The relevant inquiry is whether, after viewing 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. Jenks, 61 Ohio St.3d 259,
273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979).
With respect to whether the state presented sufficient evidence as to
Ladson’s identity, we note that the state presented the video and photo evidence
discussed at length above, as well as body camera footage showing Ladson being
pulled over for a traffic stop in a car with the same features as the car in the video
and vehicle registration evidence showing that Ladson owned a blue 2008 Infiniti
at the time of this incident. Viewing this evidence in a light most favorable to the
state, it is more than sufficient for the jury to have concluded that Ladson was the
driver of the car and the individual who shot Riggins.
With respect to Ladson’s extensive list of evidence that was not
presented, we note that “‘[p]roof of guilt may be made by circumstantial evidence,
real evidence, and direct evidence, or any combination of the three, and all three
have equal probative value.’” Brook Park v. Gannon, 2019-Ohio-2224, 137 N.E.3d
701, ¶ 24 (8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-
Ohio-1060, ¶ 18, citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988).
Therefore, the fact that the state may not have presented certain kinds of evidence
has no bearing on whether it presented sufficient evidence of Ladson’s guilt.
For these reasons, Ladson’s third assignment of error is overruled.
IV. Manifest Weight
In his fourth assignment of error, Ladson argues that his convictions
are against the manifest weight of the evidence. Specifically, he argues that the
evidence against him was poor and unreliable, reiterating the various forms of
evidence that he argues should have been presented at trial and arguing that the
state’s case was based on a minimal investigation. In addition to reiterating his
issues with the photo and video evidence discussed above, Ladson points out that
he presented evidence that his 2008 Infiniti was not in his possession on the date
of the incident, that the initial police reports in the case identified the Infiniti’s
passenger as the shooter rather than the driver, that the police never recovered
Ladson’s vehicle, and that no eyewitnesses testified despite the parking lot being
crowded at the time of the shooting.
Unlike a challenge to the sufficiency of the evidence, a manifest
weight challenge attacks the quality of the evidence and questions whether the state
met its burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819,
2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-
Ohio-3598, ¶ 13. When reviewing a manifest weight challenge, a court reviews the
entire record, weighing all evidence and reasonable inferences and considering the
credibility of the witnesses, to determine whether the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
“Issues relating to the credibility of witnesses and the weight to be
given are primarily for the trier of fact.” State v. Matthews, 8th Dist. Cuyahoga
No. 97916, 2012-Ohio-5174, ¶ 34, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434
N.E.2d 1356 (1982), and State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. Further, the trier of fact is free to believe all, part, or
none of the testimony of each witness. Id., citing State v. Caldwell, 79 Ohio App.3d
667, 607 N.E.2d 1096 (4th Dist.1992). Reversal on manifest weight grounds is
reserved for the “‘exceptional case in which the evidence weighs heavily against the
conviction.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
Following a thorough review of the record, we cannot conclude that
this is the exceptional case in which the trier of fact lost its way. The entire incident
was captured on video, and the state presented various evidence showing that
Ladson was the individual depicted in the video. With respect to the evidence that
Ladson’s vehicle was not in his possession on the date of the incident, the record
reflects that the vehicle allegedly at Klouda Automotive was a 2008 Infiniti G35,
while the BMV records presented at trial reflect that he owned a 2008 Infiniti M35.
Further, the state presented evidence at trial that Ladson sold his vehicle after this
incident and police were unable to locate the vehicle. Any claimed deficiencies in
the state’s investigation of this case, including discrepancies between the original
police report and other evidence, are not such that the jury clearly lost its way in
finding Ladson guilty of murder and felonious assault. For example, the statement
in the police report that the Infiniti passenger shot Riggins is clearly undermined
by not only witness testimony and the surveillance footage, but also Dr. Galita’s
testimony about the trajectory of the bullet. Finally, while the state’s case likely
would have been bolstered by eyewitness testimony, the lack of eyewitness
testimony does not undermine Ladson’s convictions, let alone require a conclusion
that his convictions were against the manifest weight of the evidence. Because this
case was not a manifest miscarriage of justice, Ladson’s fourth assignment of error
is overruled.
V. Tusing’s Testimony
In his fifth and final assignment of error, Ladson argues that the
admission of Tusing’s narration of the video footage and his opinions that the
images show Ladson engaging in the offenses charged in the indictment violated
the rules of evidence, invaded the province of the jury, and deprived him of his right
to due process and a fundamentally fair trial guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution. Specifically, Ladson
argues that the trial court abused its discretion when it overruled defense objections
to Tusing’s testimony that the person in the video seen shooting Riggins was Ladson
because the suspect’s identity was the primary issue to be determined by the jury.
Ladson cites Evid.R. 602 in support of his assertion that Tusing
should not have testified about Ladson’s identity because he had no personal
knowledge of the matter. Ladson also argues that because Tusing was not qualified
as an expert witness, his testimony was limited under Evid.R. 701 to opinions or
inferences rationally based on his perception and helpful to a clear understanding
of a witness’s testimony or determination of a fact in issue.
Evid.R. 602 provides that a “witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” The rule further states that “[e]vidence to prove
personal knowledge may, but need not, consist of the witness’ own testimony.”
Evid.R. 602.
While Tusing did not personally obtain the surveillance footage, he
was the lead investigator assigned to the case and therefore had adequate personal
knowledge to testify as to the contents of the footage. State v. Groce, 2019-Ohio-
1007, 133 N.E.3d 930, ¶ 46 (10th Dist.). Therefore, his testimony did not violate
Evid.R. 602.
Evid.R. 701 provides that lay witness testimony “in the form of
opinions or inferences is limited to those opinions or inferences which are
(1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.”
Under Evid.R. 701, “if testimony is based on an officer’s training and experience,
related to the officer’s personal observations during an investigation, and helpful to
determine facts in issue, the testimony is properly admitted as lay testimony.” State
v. Harris, 8th Dist. Cuyahoga No. 108624, 2020-Ohio-4461, ¶ 53, citing State v.
Maust, 8th Dist. Cuyahoga No. 103812, 2016-Ohio-3171, ¶ 18. Further, impressions
or conclusions are admissible if they assist the jury’s understanding or delineate a
fact in issue. State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511,
¶ 25, citing State v. Miller, 5th Dist. Richland No. 2009-CA-0113, 2010-Ohio-3488,
¶ 50.
Here, Tusing’s testimony was based on his perception, his role in the
investigation of this case, and his extensive review of the surveillance footage and
subsequent investigation and identification of Ladson such that it was helpful to a
clear understanding of his testimony and determination of facts in issue. Therefore,
the testimony did not violate Evid.R. 701. The trial court did not abuse its discretion
in permitting Tusing to testify as to the contents of the surveillance footage.
Ladson’s fifth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MICHELLE J. SHEEHAN, P.J., and
EILEEN T. GALLAGHER, J., CONCUR