State v. Risner , 2022 Ohio 3878 ( 2022 )

[Cite as State v. Risner, 2022-Ohio-3878.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-21-47
v.
BRANDON A.M. RISNER, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 21 01 0015
Judgment Affirmed
Date of Decision: October 31, 2022
APPEARANCES:
Stephen T. Wolfe for Appellant
Sarah J. Warren for Appellee
Case No. 8-21-47
SHAW, J.
{¶1} Defendant-appellant, Brandon Risner (“Risner”), brings this appeal
from the November 29, 2021 judgment of the Logan County Common Pleas Court
sentencing him to an aggregate, indefinite prison term of 32-36 years after Risner
was convicted by a jury of 58 crimes. On appeal, Risner argues that there was
insufficient evidence presented to convict him of certain offenses, that certain
convictions were against the manifest weight of the evidence, that the trial court
erred by providing a jury instruction on consciousness of guilt/flight, and that
inadmissible hearsay was presented at trial.
Background
{¶2} In July and August of 2020, Risner engaged in a “staggering” amount
of theft-related crimes, victimizing “virtually every aspect of [the] community.”
(Nov. 16, 2021, Sent. Tr. at 21, 22). Risner committed theft offenses against a
family member, a private business, a school, and numerous individuals who did not
know Risner. He stole, inter alia, $15,000 in cash, two motor vehicles, nineteen car
titles, an ATV, a social security card, a GPS unit, a generator, a shop vac, a diesel
programmer, a significant number of valuable tools from multiple sources, two .22
rifles, an engine hoist, and a water heater. Risner also caused over $11,000 in
damage to the school he broke into.
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{¶3} Although he was not apprehended at any of the scenes of the theft
offenses, Risner was connected to the crimes from multiple sources. His fingerprints
were found at one scene and his DNA was recovered from a separate scene. Cell
phone data linked many of the thefts together. In addition, Risner sold some of the
items he stole at a pawn shop in Indiana. Risner also worked with an accomplice for
multiple theft offenses and the accomplice testified regarding those incidents.
{¶4} Finally, many items Risner had stolen were found at the property of his
accomplice, including one of the stolen trucks. As police approached the
accomplice’s property, Risner and others were present. Risner fled the area and was
later apprehended at a hotel in Lima. The second stolen truck was in the hotel’s
parking lot and Risner had the keys to the stolen truck in his room.
{¶5} On January 12, 2021, Risner was indicted in a 64-count indictment
alleging that he committed the following crimes: engaging in a pattern of corrupt
activity in violation of R.C. 2923.32(A)(1), a second degree felony (Count 1); 28
counts of theft in violation of R.C. 2913.02(A)(1), all fifth degree felonies (Counts
2, 4, 10, 12, 16-35, 42-44, 61); 2 counts of theft in violation of R.C. 2913.02(A)(1),
both fourth degree felonies (Counts 13, 14); 4 counts of petty theft in violation of
R.C. 2913.02(A)(1), all first degree misdemeanors (Counts 3, 45, 56, 60); 6 counts
of breaking and entering in violation of R.C. 2911.13(A), all fifth degree felonies
(Counts 5, 9, 36, 53, 59, 62); 5 counts of grand theft of a motor vehicle in violation
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of R.C. 2913.02(A)(1), all fourth degree felonies (Counts 6, 15, 50, 55, 58); 3 counts
of receiving stolen property in violation of R.C. 2913.51(A), felonies of the fifth,
fifth, and fourth degree respectively (Counts 7, 54, 57); 2 counts of grand theft in
violation of R.C. 2913.02(A)(1), both fourth degree felonies (Counts 8, 51);
tampering with records in violation of R.C. 2913.42(A)(1), a first degree
misdemeanor (Count 11); 2 counts of attempted grand theft of a motor vehicle in
violation of R.C. 2923.02/R.C. 2913.02(A)(1)/(B)(5), both fifth degree felonies
(Counts 37-38); burglary in violation of R.C. 2911.12(A)(2), a second degree felony
(Count 39); safecracking in violation of R.C. 2911.31(A), a fourth degree felony
(Count 40); theft from a person in a protected class in violation of R.C.
2913.02(A)(1), a third degree felony (Count 41); 3 counts of possessing criminal
tools in violation of R.C. 2923.24(A), all fifth degree felonies (Counts 46-48);
attempted safecracking in violation of R.C. 2923.02/R.C. 2911.31(A), a fifth degree
felony (Count 49); vandalism in violation of R.C. 2909.05(B)(2), a fifth degree
felony (Count 52); having weapons while under disability in violation of R.C.
2923.13(A)(2), a third degree felony (Count 63); and criminal damaging or
endangering in violation of R.C. 2909.06(A)(1), a second degree misdemeanor
(Count 64). Risner pled not guilty to the charges.
{¶6} A jury trial was held from August 30, 2021 to September 3, 2021.
Ultimately Risner was convicted of 58 of the counts against him. He was acquitted
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of 5 counts, specifically counts 6, 14, 54, 58 and 59. Count 42 was dismissed by the
State during jury deliberations.
{¶7} On November 16, 2021, the matter proceeded to sentencing. The State
recommended a 40.5-year prison term, while the defense recommended a 17.5-year
prison term. For his part, Risner acknowledged committing the crimes and
apologized to multiple victims for his offenses.
{¶8} The trial court then determined that some counts should merge for
purposes of sentencing, that some counts should be run concurrently, and that some
counts should be run consecutively. Ultimately Risner was sentenced to serve an
aggregate, indefinite prison term of 32-36 years. A judgment entry memorializing
his sentence was filed November 29, 2021. It is from this judgment that Risner
appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
The evidence presented at trial was insufficient to sustain the
convictions.
Assignment of Error No. 2
The jury’s verdicts were against the manifest weight of the
evidence.
Assignment of Error No. 3
The trial court erred in giving a flight instruction to the jury.
Assignment of Error No. 4
The trial court erred when it allowed hearsay testimony in under
the business records exception.
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First Assignment of Error
{¶9} In his first assignment of error, Risner argues that there was insufficient
evidence presented to convict him of engaging in a pattern of corrupt activity and
of 18 counts of theft of motor vehicle titles. We emphasize that Risner does not
challenge his remaining convictions or make any arguments regarding them.
Standard of Review
{¶10} “Whether the evidence is legally sufficient to sustain a verdict is a
question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Groce,
163 Ohio St.3d 387, 2020-Ohio-6671, ¶ 6. Therefore, our review is de novo. In re
J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, ¶ 3. In a sufficiency-of-the-evidence
inquiry, the question is whether the evidence presented, when viewed in a light most
favorable to the prosecution, would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus (superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102,
(1997), fn. 4) following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
Controlling Statutes
{¶11} Risner was convicted of engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(1), which reads:
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No person employed by, or associated with, any enterprise shall
conduct or participate in, directly or indirectly, the affairs of the
enterprise through a pattern of corrupt activity or the collection
of an unlawful debt.
“Enterprise,” for purposes of engaging in a pattern of corrupt activity, is defined in
R.C. 2923.31(C) as including
any individual, sole proprietorship, partnership, limited
partnership, corporation, trust, union, government agency, or
other legal entity, or any organization, association, or group of
persons associated in fact although not a legal entity. “Enterprise”
includes illicit as well as licit enterprises.
{¶12} Risner was also convicted of 19 counts of theft of motor vehicle titles
in violation of R.C. 2913.02(A)(1)/(B), which reads:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to
give consent[.]
***
(B)(1) Whoever violates this section is guilty of theft.
***
If the value of the property or services stolen is one thousand
dollars or more and is less than seven thousand five hundred
dollars or if the property stolen is any of the property listed
in section 2913.71 of the Revised Code, a violation of this section
is theft, a felony of the fifth degree.1
1
Revised Code 2913.71 reads:
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Analysis
{¶13} Risner presents two primary challenges to the evidence in this case.
First, Risner challenges his conviction for engaging in a pattern of corrupt activity
by arguing that although he may have committed numerous criminal offenses,
“there was no evidence presented of a criminal enterprise.” (Appt.’s Br. at 7).
Second, Risner argues that there was insufficient evidence presented to convict him
of 18 counts of theft of motor vehicle titles from Chariot Motors because those
specific 18 titles were never recovered. We will review each of these arguments in
turn.
Engaging in a Pattern of Corrupt Activity
{¶14} In arguing that there was insufficient evidence to convict him of
engaging in a pattern of corrupt activity, Risner claims that the State failed to
establish that he engaged in a criminal “enterprise” because there was no evidence
that he conducted his activities in association with anyone. He claims that he went
on an “unorganized” crime spree that was not in furtherance of any enterprise or
entity besides himself. (Appt.’s Br. at 7).
Regardless of the value of the property involved and regardless of whether the
offender previously has been convicted of a theft offense, a violation of section
2913.02 or 2913.51 of the Revised Code is a felony of the fifth degree if the property
involved is any of the following:
***
(D) A blank form for a certificate of title or a manufacturer’s or importer’s certificate
to a motor vehicle, as prescribed by section 4505.07 of the Revised Code[.]
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{¶15} Despite his contention, Risner’s arguments are contradicted by the
evidence, particularly through the testimony of his accomplice, Tyler Q. (“Tyler”).
Tyler testified that at the time of trial he had already pled guilty to multiple counts
of receiving stolen property for crimes he committed with Risner.2
{¶16} As to the crimes he committed with Risner, Tyler detailed an incident
wherein he went with Risner and another person named “JJ” to the “Lamson”
residence in a Ford F250 that Risner had previously stolen. At the Lamson
residence, Tyler and Risner entered a detached garage and took numerous valuable
items belonging to Susan Lamson and Clay Costin.
{¶17} Subsequently, Tyler testified that he went with Risner to steal a “4-
wheeler” in Bellefontaine that had been “spotted” by another individual named
“John Messner.” Tyler testified that he and Risner took the 4-wheeler and the trailer
it was on and left the area. A local surveillance camera captured Tyler and Risner
leaving the area with the 4-wheeler, corroborating Tyler’s testimony.
{¶18} Aside from participating in the thefts themselves, Tyler testified that
he was a drug addict and that Risner would give him money and drugs. Tyler
testified that he saw Risner have as much as $10,000 to $12,000 in cash.
2
Tyler testified that part of his “deal” with the State was for him to plead guilty to certain charges and testify
truthfully in Risner’s trial. In exchange the State would recommend that Tyler be given a suspended prison
sentence of over 9 years.
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{¶19} Law enforcement located Risner at Tyler’s residence, though Risner
fled the area when law enforcement approached. One of the two stolen trucks was
behind Tyler’s residence with numerous stolen items inside of it. ATVs that Risner
had taken were also at Tyler’s residence. Tyler testified he was working on one of
the ATVs for Risner.
{¶20} In addition to Tyler, and “JJ,” there was evidence to support Risner
working with other people as well. Specifically, when Risner went to the pawn shop
in Indiana to sell some of the stolen items, he had two people with him. Further,
Risner was apprehended on a later date at a motel room in Lima he was sharing with
a woman. The other truck Risner stole was in the hotel’s parking lot.
{¶21} When viewing the totality of the circumstances, we find that the
evidence is consistent with evidence that the Supreme Court of Ohio has found
sufficient to establish a criminal enterprise for engaging in a pattern of corrupt
activity. In State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, the Supreme Court
of Ohio conducted the following analysis and determined that a pattern of corrupt
activity had been established:
The record is replete with examples of Beverly and Imber
associating together for a common purpose of engaging in a
course of conduct. Beverly and Imber drove (and perhaps stole)
an Ohio Department of Transportation truck and used it to steal
an expensive stump grinder. They used a stolen Chevrolet
Caprice in the course of an attempted burglary. And most
notoriously, for purposes of this case, they used a stolen truck to
commit several burglaries on January 28, 2011. It is clear to us
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that the record provides ample support for a rational trier of fact
to conclude that Beverly and Imber constituted an association-in-
fact enterprise and that they engaged in a pattern of corrupt
activity. Indeed, we cannot imagine a trier of fact concluding
otherwise.
Beverly, at ¶ 16.
{¶22} The facts in this case are comparable to the facts in Beverly, thus we
do not find that insufficient evidence was presented to convict Risner of engaging
in a pattern of corrupt activity, particularly when viewing the evidence in the light
most favorable to the State, as we are directed.3 For all of these reasons, Risner’s
challenge to his conviction for engaging in a pattern of corrupt activity is not well-
taken.
Theft of Motor Vehicle Titles
{¶23} Edward H. testified at trial that he owned a used car sale-business
called Chariot Motors. Edward testified that the business was “ransacked” on July
30, 2020. (Tr. at 244). He testified that numerous items had been taken, including:
a red 2005 Chevy Silverado truck, 19 vehicle titles, 2 .22 rifles, 15 checks, $50-100
cash, and an Archie Griffin signed football.
{¶24} Risner was linked to the theft at Chariot Motors from multiple sources.
First, when Risner was apprehended at a motel in Lima, the stolen red 2005 Chevy
3
We note that while the evidence may not have perfectly established that every crime Risner was convicted
of was part of a criminal enterprise, the evidence did affirmatively establish that there were numerous crimes
that a trier-of-fact could determine were part of a criminal enterprise.
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Silverado was in the parking lot and the keys to the truck were in Risner’s room.
Second, the title to the 2005 Chevy Silverado was inside the vehicle along with
“SNAP assistance paperwork” specifically addressed to Risner. The recovered truck
also had multiple items in it that had been stolen from other sources such as a diesel
programmer, a property tag from the school that had been broken into, and the social
security card of another theft victim. Notably, Risner was linked to the school theft
through DNA
{¶25} Although the 2005 Chevy Silverado and the title to that truck were
located, none of the other 18 titles that were taken from Chariot Motors were ever
recovered. Risner now contends that there was insufficient evidence presented to
convict him of theft of the 18 vehicle titles that were not actually recovered by law
enforcement.
{¶26} Contrary to Risner’s argument, 1 of the 19 titles that was taken from
Chariot Motors was recovered in the truck that Risner had the keys to, which was
parked outside of Risner’s motel room. Since Risner had the stolen truck and 1 of
the 19 titles that had been taken from Chariot Motors, a reasonable factfinder could
determine beyond a reasonable doubt that Risner had taken the other 18 car titles as
well as the Chevy Silverado and its title, particularly given that they all went missing
at the same time. See State v. Brelo, 8th Dist. Cuyahoga No. 87282, 2006-Ohio-
4767.
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{¶27} Based on the evidence presented, and when reviewing it in the light
most favorable to the State as we are directed on appeal, we do not find that
insufficient evidence was presented to convict Risner of theft of the 18 unrecovered
car titles. Having already determined that his challenge to the conviction for
engaging in a pattern of corrupt activity is unavailing, Risner’s first assignment of
error is overruled.4
Second Assignment of Error
{¶28} In his second assignment of error, Risner argues that even if there was
sufficient evidence presented to convict him of engaging in a pattern of corrupt
activity and theft of the 18 unrecovered car titles, the convictions were against the
manifest weight of the evidence.
Standard of Review
{¶29} In reviewing whether a verdict was against the manifest weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing
so, this court must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses and determine whether
in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
4
We again emphasize that Risner did not challenge any of his remaining convictions; however, even if he
did, the evidence was sufficient to support the jury’s determinations.
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such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Id.{¶30} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility of the witnesses. State
v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight
standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against
the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Analysis
{¶31} Risner summarily argues that for the same reasons he challenged his
convictions in the first assignment of error, his convictions for engaging in a pattern
of corrupt activity and for 18 counts of theft related to motor vehicle titles were
against the manifest weight of the evidence. Risner makes no additional arguments
in support of his claims.
{¶32} When reviewing the record as a whole, there is an overwhelming
amount of evidence tying Risner to the crimes he was convicted of committing.
Risner was connected to the crimes by fingerprints, DNA evidence, and cell tower
data. Risner was found in possession of some of the stolen items when he was
apprehended and his accomplice testified against him at trial. While Risner may
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have contended at trial that the accomplice was not credible, there was evidence
presented to corroborate the accomplice’s testimony. Moreover, we will not second-
guess a jury’s credibility determinations. State v. DeHass, 10 Ohio St.2d 230, 231
(1967).
{¶33} Risner’s contention that there was no evidence that he worked with
other people to create a criminal enterprise is entirely contrary to the facts of this
case. Moreover, his claim that he cannot be convicted of theft of the unrecovered
motor vehicle titles is not supported by any legal authority.
{¶34} In sum, this is a case where overwhelming evidence tied Risner to the
many crimes he committed. We cannot find that this is a case where the jury clearly
lost its way or created a manifest miscarriage of justice. See State v. Thompkins, 78
Ohio St.3d 380, 387, 1997-Ohio-52. This is particularly true given that the jury
returned five acquittals when it determined that the evidence did not meet the
threshold of “beyond a reasonable doubt,” establishing that the jury was discerning
in its deliberations. For all of these reasons, Risner’s second assignment of error is
overruled.
Third Assignment of Error
{¶35} In his third assignment of error, Risner argues that the trial court erred
by giving a consciousness of guilt/“flight” instruction to the jury.
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Standard of Review
{¶36} An appellate court reviews a trial court’s decision to give the jury a
particular set of jury instructions under an abuse of discretion standard. State v.
Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 61. An abuse of
discretion suggests that the trial court’s decision is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
Analysis
{¶37} Prior to trial, the State requested a jury instruction on “flight as
evidence of guilt.” (Tr. at 26). The defense opposed the instruction and the trial
court reserved ruling on the matter until it heard the evidence, stating:
The Court hereby instructs the State not to mention flight as
evidence of guilt in voir dire or opening statement or until there
has been evidence that has been produced during the trial that
demonstrates there was flight to be proof as evidence of guilt. So
don’t say anything about that and we’ll take that up at a later date
after that, if it comes up, see if it’s appropriate or not.
(Tr. at 26-27).
{¶38} During the trial, law enforcement officers testified that they followed
Risner’s girlfriend in an attempt to locate Risner. The officers followed Risner’s
girlfriend in an unmarked vehicle in plain clothes. Risner’s girlfriend drove to
Tyler’s residence and parked in the driveway. The officers saw Risner in the yard
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of the residence and reversed the unmarked vehicle to confront Risner and the
others.
{¶39} When the officers pulled into the yard, they got out of the vehicle and
approached Risner and the others on foot. Tyler saw the officers, recognized them,
said “Oh, shit” aloud, and then he jumped through the open window to his home.
The officers identified themselves as being from the Logan County Sheriff’s Office,
but it is not clear from the testimony if Risner heard them. Regardless the officers
testified that Risner “duck[ed] down” initially as they approached and Tyler testified
that Risner “book[ed] it into the woods” after Tyler panicked and dove through his
window. Risner was not apprehended despite a search of the area. He was found
many days later at a motel in Lima.
{¶40} After all of the evidence was presented to the jury, the trial court
addressed the issue of whether an instruction on “flight” would be given. Defense
counsel argued that because the officers were in an unmarked car and because the
officers were not in uniform when they approached Risner, a flight instruction
regarding consciousness of guilt was not appropriate. The trial court overruled
defense counsel’s objection to the instruction, reasoning that a reasonable jury could
find that Risner fled from law enforcement.
{¶41} The following instruction was then given to the jury:
Testimony has been admitted indicating that after seeing law
enforcement the defendant fled the area. You are instructed that
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this alone does not raise a presumption of guilt but it may tend to
indicate the defendant’s consciousness or awareness of guilt. If
you find that the facts do not support that the defendant fled to
avoid the jurisdiction of this court or if you find that some other
motive prompted the defendant’s conduct or if you are unable to
decide what the defendant’s motivation was, then you should not
consider this evidence for any purpose; however, if you find that
the facts support that the defendant engaged in such conduct and
if you decide that the defendant was motivated by a consciousness
or awareness of guilt, you may but are not required to consider
that evidence in deciding whether the defendant is guilty of the
crimes charged. You alone will determine what weight, if any, to
give this evidence.
(Tr. at 856-857).
{¶42} Risner argues that it was an abuse of discretion for the trial court to
give the preceding instruction. He contends that the evidence actually established
that he fled the area before he could have even known that the people approaching
Tyler’s residence were law enforcement officers. He emphasizes that the officers
were in an unmarked vehicle and they were not in uniform. He argues that “it was
just as likely someone was coming to harm him, and hence he ran.” (Appt.’s Br. at
10).
{¶43} Contrary to Risner’s argument, there was evidence presented to
support the trial court giving a “consciousness of guilt/flight” instruction to the jury
specifically through the testimony of the officers that approached Risner before he
fled Tyler’s property and through Tyler’s testimony that he was aware of who the
officers were. For this reason alone we could find no abuse of discretion here
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because the instruction was supported by the evidence. See State v. Lewis, 4th Dist.
Ross No. 14CA3465, 2016-Ohio-1592.
{¶44} Moreover, the trial court also gave an instruction that left the
interpretation of the evidence fully within the jury’s discretion, indicating that if the
jury felt Risner had a different motivation (like fear of harm) or if the jury could not
discern Risner’s motivation at all then the jury should not consider the evidence for
any purpose. “[A]n appellate court must review jury instructions in the context of
the entire charge.” State v. Barker, 11th Dist. Portage No. 2010–P0044, 2012-Ohio-
522, ¶ 91, citing State v. Hardy, 28 Ohio St.2d 89, 92 (1971).
{¶45} In sum, the jury instruction was supported by the evidence presented
at trial. Separately, in context of the entire jury charge, we cannot find an abuse of
discretion here. For both of these reasons, Risner’s third assignment of error is
overruled.
Fourth Assignment of Error
{¶46} In his fourth assignment of error, Risner argues that the trial court
permitted inadmissible hearsay at trial. Specifically, Risner argues that purported
business records were presented to the jury without proper identification and
authentication as records maintained in the ordinary course of business pursuant to
Evid.R. 803(6).
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Standard of Review
{¶47} A trial court has broad discretion over the admission or exclusion of
evidence, and a reviewing court generally will not reverse an evidentiary ruling
absent an abuse of discretion that materially prejudices the affected party. State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 172; State v. Hughes, 10th Dist. No.
14AP-360, 2015-Ohio-151, ¶ 41.
Relevant Authority
{¶48} Evidence Rule 803(6)5 creates a hearsay exception for certain business
records. To qualify for admission under Evid.R. 803(6), the record must meet four
requirements:
“(i) the record must be one regularly recorded in a regularly
conducted activity; (ii) it must have been entered by a person with
knowledge of the act, event or condition; (iii) it must have been
recorded at or near the time of the transaction; and (iv) a
foundation must be laid by the ‘custodian’ of the record or by
some ‘other qualified witness.’ ”
5
Evidence Rule 803(6) reads as follows:
The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
***
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or
data compilation, in any form, of acts, events, or conditions, made at or near the time
by, or from information transmitted by, a person with knowledge, if kept in the course
of a regularly conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other qualified witness or as provided
by Rule 901(B)(10), unless the source of information or the method or circumstances
of preparation indicate lack of trustworthiness. The term “business” as used in this
paragraph includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
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State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 170, quoting Weissenberger,
Ohio Evidence, Section 803.73, at 600 (2007), quoting Evid.R. 803(6). A “qualified
witness” is someone with “enough familiarity with the record-keeping system of the
business in question to explain how the record came into existence in the ordinary
course of business.” State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 40; State
v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493.
Analysis
{¶49} In this case, a pawn shop employee and two detectives testified
regarding “LeadsOnline” reports, which are records that show individuals who have
sold items to pawn shops and records as to what the individuals sold to the pawn
shops. The trial court permitted the witnesses’ testimony regarding “LeadsOnline”
over objection by defense counsel.
{¶50} Risner argues that the trial court abused its discretion by permitting
testimony regarding the “LeadsOnline” reports because none of the State’s
witnesses was able to articulate how “LeadsOnline” worked or how its records were
maintained. He argues that none of the witnesses entered information into the
“LeadsOnline” system, thus the records were not properly authenticated and they
were not properly established as being maintained in the regular course of business.
{¶51} Contrary to Risner’s argument, one detective testified at trial that he
was familiar with “LeadsOnline,” which was a system that allowed him to type in a
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name and see if someone had sold an item to a pawn shop. The detective testified
that he used LeadsOnline after Risner was identified as a potential suspect. When
the detective ran Risner’s name through LeadsOnline he found that Risner had
pawned items in Richmond, Indiana. Using this information, the detective went to
the pawn shop and found surveillance video of Risner pawning a welding helmet
matching the description of a welding helmet that had been stolen.
{¶52} The detective also spoke to the pawn shop employee who engaged in
the transaction with Risner, and the pawn shop employee testified at trial. The pawn
shop employee testified that with every transaction he obtained the person’s
identification and entered the transaction into his system, though he was not sure
how that information was transferred to LeadsOnline. Nevertheless, the pawn shop
employee testified that he remembered Risner coming to the store. He also
remembered a red truck, and multiple people who were outside with Risner.
{¶53} Another detective testified to his familiarity with LeadsOnline and he
was specifically asked how the information was generated for the site and testified
as follows:
I can tell you that – in the State of Ohio – every state’s probably
very similar, but in the State of Ohio it’s governed by the
Department of Commerce, so they are required to report to the
LEADS law enforcement agency in their jurisdiction who is in
there selling or pawning what items Multiple people do it in
different ways. It used to be you get stacks of tickets and they
would have to take those to a law enforcement entity, right? But
what they’ve done in the past, LeadsOnline was able to come in
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and they interfaced with their systems, so within 24 hours roughly
after that, their computer systems at their local pawns will upload
into LeadsOnline. And that requires – that satisfies their
requirement to report to their LEADS local law enforcement
agencies because we have access to them.
(Tr. at 610).
{¶54} Given the testimony of both detectives and the pawn shop employee,
we do not find that it was an abuse of discretion for the trial court to determine that
all of the requirements for the introduction of a business record were met in this
matter. Testimony indicated that the pawn shop employee entered information into
his system regarding the identity of the person selling an item and information on
the item that was being sold at the time of the transaction, being a regularly recorded
transaction at the time it occurred. A detective testified that the information was
then generally uploaded to LeadsOnline, usually within 24 hours, which allowed
law enforcement officers to search the information. There certainly could have been
clearer testimony from witnesses more directly tied to LeadsOnline, but with a
discretionary matter such as this, we do not find that the trial court’s determination
was arbitrary.
{¶55} Moreover, even if we determined that the testimony of both detectives
and the pawn shop employee did not satisfy the requirements to introduce a business
record into evidence under the hearsay exception, we do not find that there was any
material prejudice in this matter. The pawn shop employee himself testified that he
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remembered Risner and Risner was on video surveillance at the pawn shop selling
a welding helmet that was specifically described by the witness from whom it had
been stolen. Under these circumstances, there is no material prejudice. The
LeadsOnline information is merely cumulative, and is not prejudicial even if it was
erroneously admitted. See State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-
5908, ¶ 72.
{¶56} Furthermore, the LeadsOnline report primarily led law enforcement to
further investigate Risner’s activity at the pawn shop, and it could have been
admissible for that separate purpose. See Stevens v. Mississippi, 312 So.3d 1205, ¶
10 (2021) (testimony regarding LeadsOnline was admissible to show next
investigative step even if not for substantive purposes). For all of these reasons,
Risner’s fourth assignment of error is overruled.
Conclusion
{¶57} For the foregoing reasons Risner’s assignments of error are overruled
and the judgment of the Logan County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/jlr
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