State v. Hinkston , 2015 Ohio 3851 ( 2015 )

[Cite as State v. Hinkston, 2015-Ohio-3851.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-140448
C-140449
Plaintiff-Appellee, : TRIAL NOS. B-0602782-A
B-1305266
vs. :
O P I N I O N.
MARK HINKSTON, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: September 23, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Mark Hinkston was convicted of felonious assault with a gun
specification, having a weapon while under disability, trafficking in cocaine and
trafficking in heroin. In this appeal, he argues that the state failed to prove venue for the
drug counts, that the court committed evidentiary errors, that he was prejudiced by
prosecutorial misconduct and that he was deprived of the effective assistance of counsel.
We affirm the judgments of the trial court.
I. Background
{¶2} In the early morning hours of August 20, 2013, Malcolm Graham, Carley
Moore and Mariah Gibson were sitting outside Moore’s apartment watching videos on
their cell phones. A man with a “Rasta hat” approached and shot Graham twice. Mr.
Graham ran to a nearby house, and the homeowners called 911.
{¶3} Several days later, Mr. Graham was in a car with his mother when he
spotted the person he believed had shot him. Because Mr. Graham was not certain the
man was the shooter, he did not contact the police. On August 27, Graham’s mother saw
the same man and called the police. Police officers, including Detective Mark
Longworth, responded and stopped the man, who was identified as Hinkston. Detective
Longworth searched Hinkston and found cocaine, heroin and a cell phone in his pocket.
{¶4} Following Hinkston’s arrest, police executed a warrant at his residence
and recovered a hat that matched the description given by Graham and Moore. Mr.
Hinkston denied that the hat belonged to him, but DNA recovered from the hat matched
his own. Mr. Graham and Ms. Moore identified Hinkston in a photograph array
presented by police officers.
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{¶5} At trial, Mr. Graham and Ms. Moore again identified Hinkston as the
person that shot Graham. Paula Papke, records custodian for Cincinnati Bell, testified
about records related to the cell phone found on Hinkston. She explained that the cell
phone had a unique number belonging to it (an “IMEI number”) and that the SIM card
found in the phone had a distinct number. With these identifiers, Ms. Papke was able to
connect text messages to the phone. Additionally, Ms. Papke provided the locations of
cell phone towers that were pinged by the cell phone. The records indicated that calls
from the cell phone during the late hours of August 19 and the early morning hours of
August 20 pinged on a cell phone tower near the site of Graham’s shooting.
{¶6} Detective Joseph Coombs led the investigation of Graham’s shooting and
the subsequent stop of Hinkston. He testified that as a drug investigator he was familiar
with the terms used in the text messages. For example, on August 19, the day before
Graham was shot, the cell phone received a messaged that said, “Still waiting on the
white boy to see whats up wit [sic] that banger too.” Detective Coombs explained
“banger” was another word for a gun. The next message sent from the phone was “It’s
cool we still go’n hit a lick,” which Detective Coombs advised usually meant “doing a
robbery, doing a shooting, it could mean any kind of criminal involvement.” Other
messages referenced drugs. In the early morning hours of August 27, the cell phone
received a message asking “Can you hook a 20 up?” According to Detective Coombs,
that message was a request for a $20 piece of rock cocaine or heroin. Later requests for
“hard,” “pup,” and “zannies” were interpreted by Detective Coombs to mean crack
cocaine, heroin and Xanax, respectively.
{¶7} In his defense, Mr. Hinkston called Melissa Berry, a forensic
psychologist, to testify about research that called into question the trustworthiness of
eyewitness identifications and the reliability of police photograph lineup procedures.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} At the conclusion of the trial, the jury found Hinkston guilty as charged,
and the court sentenced him accordingly.
II. Venue
{¶9} In his first assignment of error, Mr. Hinkston asserts that the trial court
erred when it denied his Crim.R. 29 motion for an acquittal with respect to the drug
charges. He contends that the state failed to prove venue for the offenses.
{¶10} “[V]enue must be proved beyond a reasonable doubt in a criminal case.”
State v. Gardner, 42 Ohio App. 3d 157, 536 N.E.2d 1187 (1st Dist.1987). Mr. Hinkston
did not raise the issue of venue in the trial court, but the failure to prove venue is plain
error. Id. at 158. See Crim.R. 52(B).
{¶11} The simplest way to establish venue is to ask the question directly, as the
state did during its direct examination about the shooting—“Is that in Hamilton
County?” The state did not ask the same question when examining witnesses about the
stop that led to the drug charges. Absent direct evidence, venue can be established “by
the evidence as a whole or by circumstantial evidence.” State v. Tapke, 1st Dist.
Hamilton No. C-060494, 2007-Ohio-5124, ¶ 59. Mr. Hinkston maintains that the
circumstantial evidence did not establish that the offenses occurred in Hamilton County.
{¶12} Mr. Hinkston argues that this case is similar to State v. Sullivan, 1st Dist.
Hamilton Nos. C-130628 and C-130629, 2014-Ohio-3112, in which this court reversed
convictions for failure to stop after an accident and improper backing because the state
had not proved venue. In that case, we noted that certain locations were mentioned, but
that the state had not elicited testimony identifying the city, county or state of the
locations. Further, “[a]t trial, the words ‘Hamilton County,’ ‘Cincinnati,’ or even ‘Ohio’
were never mentioned.” Id. at ¶ 10.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} As in Sullivan, the location of where Hinkston was stopped with
drugs—Glenway Avenue—was mentioned but never placed in Cincinnati or Hamilton
County. Nonetheless, there was other testimony from which the jury could have
found that the trafficking occurred in Cincinnati. Detective Longworth testified that
he worked in “District 3 Investigative Unit.” Although he never said he was a
Cincinnati police officer, he did state that he was Detective Coombs’s partner.
Detective Coombs identified himself as a Cincinnati police officer working in District
3 Investigative Unit. Further, the notification-of-rights form that Hinkston signed
after he was arrested was labeled “Cincinnati Police Department Notification of
Rights.” Finally, there was testimony that the drugs found in Hinkston’s pocket were
analyzed by Tracy Sundermeier of the Hamilton County Crime Laboratory. We
conclude that there was sufficient evidence from which the jury could determine that
the drug offenses happened in Hamilton County. The first assignment of error is
overruled.
III. No Error Admitting Text Messages
{¶14} In his second assignment of error, Mr. Hinkston asserts that the court
erred when it admitted text messages from the cell phone found on him when he was
arrested. He argues that the messages were not properly authenticated, that they were
inadmissible hearsay and that their admission violated his rights under the
Confrontation Clauses of the United States and Ohio Constitutions.
{¶15} Mr. Hinkston contends that Papke’s testimony was not sufficient to
authenticate the text messages. He seems to confuse the requirement of authentication
with the weight to be given the evidence. Papke’s testimony connected the phone’s IMEI
number and the SIM number with the text messages later explained by Detective
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OHIO FIRST DISTRICT COURT OF APPEALS
Coombs. That testimony authenticated the records: it showed that the records were
from the cell phone taken from Hinkston. See Evid.R. 901(A).
{¶16} Mr. Hinkston further argues that there was not sufficient evidence to
connect him to the text messages, because the cell phone was registered to Dawn Key,
Hinkston’s girlfriend, and because Papke could not determine who had actually sent the
messages. Ms. Key gave Detective Coombs a different cell number for her contact
information. Detective Coombs testified about one message received by the phone from
Key’s number in which she complained, “I am getting real sick of going to voicemail,
Mark.” This evidence, along with the phone having been found in Hinkston’s
possession, was sufficient for the jury to determine that the text messages had been sent
and received by Hinkston.
{¶17} Mr. Hinkston also challenges the admissibility of the text messages. The
record of the cell phone account was admissible as a business record. See Evid.R.
803(6). But the messages themselves are “hearsay within hearsay” and must be
independently admissible. See Evid.R. 805. Many of the messages discussed at trial
were allegedly sent by Hinkston, and so were admissible as nonhearsay admissions by a
party-opponent. See Evid.R. 801(D)(2). Messages referencing drugs were admitted
not for the truth of the matter asserted, but to give context to Hinkston’s responses. As
such, they were not hearsay. See Evid.R. 801(C). Other messages in the records
presented to the jury were arguably inadmissible hearsay, but their admission was
harmless in light of the overwhelming evidence of Hinkston’s guilt.
{¶18} Within this assignment of error, Mr. Hinkston maintains that the
admission of the text messages violated his Confrontation-Clause rights. But his
confrontation rights were not implicated, much less violated, by the admission of the
messages.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} The Confrontation Clause of the Sixth Amendment protects a
defendant’s right to be “confronted with the witnesses against him.” In Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2007), the United
States Supreme Court held that the clause prohibits the admission of testimonial
statements of a witness who does not testify at trial, unless the witness is unavailable
for trial and the defendant has had a prior opportunity to cross-examine her. In later
cases, the court pinpointed what qualified as “testimonial statements.” Thus,
statements were testimonial “when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
The court reserved the question of what constituted an interrogation. Id. at 823, fn.
2. “In the end, the question is whether, in light of all the circumstances, viewed
objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court
substitute for trial testimony.’ ” Ohio v. Clark, __ U.S. __, 135 S. Ct. 2173, 2180, 192
L. Ed. 2d 306 (2015), quoting Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179
L. Ed. 2d 93 (2011). Here, the purpose of the text messages was not to “create an out-
of-court substitute for trial testimony.” It’s a safe bet that the people involved in the
text conversations about drugs and guns did not intend for the messages to become
any part of a criminal trial. Because the messages were not testimonial in nature,
Mr. Hinkston’s confrontation rights were not violated. The second assignment of
error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
IV. Taped Police Statement was Properly Excluded as Hearsay
{¶20} Hinkston’s third assignment of error is that the court improperly
excluded the recording of his interview with Detective Coombs. He argues that his out-
of-court statement was admissible as a public report under Evid.R. 803(8).
{¶21} Evid.R. 803(8) provides an exception to the hearsay rule for
“[r]ecords, reports, statements, or data compilations, in any form, of public offices or
agencies, setting forth (a) the activities of the office or agency, or (b) matters
observed pursuant to duty imposed by law[.]” Excluded from the exception are
“matters observed by police officers * * * unless offered by defendant.” Evid.R.
803(8). Although the recording was offered by the defendant in this case, it does not
fall within this exception because it was not a report of Detective Coombs’s
observations. See State v. Gau, 11th Dist. Lake No. 2000-L-109, 2002-Ohio-4216, ¶
19-21. The court properly excluded the evidence. The third assignment of error is
overruled.
IV. No Prosecutorial Misconduct
{¶22} The fourth assignment of error is that the trial court erred when it
allowed the state to engage in prosecutorial misconduct during its closing argument.
“The test regarding prosecutorial misconduct in closing arguments is whether the
remarks were improper and, if so, whether they prejudicially affected substantial
rights of the defendant.” State v. Smith, 14 Ohio St. 3d 13, 14, 470 N.E.2d 883 (1984).
During the trial, Mr. Hinkston objected to only one of the comments that he maintains
were improper. For the remainder of the comments, we review for plain error. See
Crim.R. 52(B).
{¶23} We consider first the comment to which Hinkston objected. Mr.
Hinkston argues that the assistant prosecuting attorney overstepped the bounds of fair
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OHIO FIRST DISTRICT COURT OF APPEALS
comment on the evidence when he suggested that the cell phone found in Hinkston’s
possession placed him at the scene of the shooting. But Ms. Papke testified that, in the
late hours of August 19 and the early hours of August 20, the cell phone pinged on
towers located near the area where Graham was shot. The assistant prosecuting
attorney’s argument was not improper in light of Papke’s testimony.
{¶24} Mr. Hinkston did not object to the remaining comments he now
challenges. Thus, he “must establish both that misconduct occurred and that but for
the misconduct, the outcome of the trial clearly would have been otherwise.” See
State v. Pickens, 141 Ohio St. 3d 462, 2014-Ohio-5445, 25 N.E.2d 1023, ¶ 109.
{¶25} Mr. Hinkston protests that, during rebuttal, the assistant prosecuting
attorney mischaracterized defense counsel’s closing argument. We are not convinced
that the assistant prosecuting attorney’s statements were improper in light of defense
counsel’s argument. During his argument, defense counsel reminded the jury that the
police officers had not recorded Moore’s statement describing the shooter. He went on
to suggest that the officers had not recorded the statement so that Moore could later
change her story at trial. Counsel also argued that police officers regularly lie to the
accused to elicit incriminating statements. Faced with defense counsel’s charges of
trickery and lying on the part of the police officers, the assistant prosecuting attorney
responded:
If you think that we are coming in here and cheating and lying and
convincing witnesses to cheat and lie to convict somebody that we
don’t even know for reasons not even known to anyone, then you
should absolutely return a verdict of not guilty. But I will tell you that
that is a bunch of BS. We are not cheating and lying.
This rebuttal was fair in light of defense counsel’s argument.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Mr. Hinkston also insists that the assistant prosecuting attorney
improperly stated that Hinkston had sent the text message that said, “Still waiting on the
white boy to see what’s up wit [sic] that banger too.” It’s not clear from the transcript
that the assistant prosecuting attorney was arguing that the message was sent by
Hinkston. Even if his comments are interpreted in this manner, we are unable to say
that but for the misstatement, the outcome of the trial would have been different.
Detective Coombs testified that message was received, not sent, by the phone used by
Hinkston. The next message sent by the phone—“It’s cool we still go’n hit a lick”—clearly
implicated Hinkston. The fourth assignment of error is overruled.
V. No Ineffective Assistance of Counsel
{¶27} Hinkston’s final assignment of error is that he was denied the
effective assistance of counsel. He complains that his counsel failed to object to the
text messages as inadmissible hearsay and that counsel should have objected to the
assistant prosecuting attorney’s improper arguments during closing.
{¶28} To succeed on this claim, Mr. Hinkston must show that his counsel’s
performance was deficient, and that, absent his counsel’s errors, the result of the
proceedings would have been different. See Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 142,
538 N.E.2d 373 (1989). Mr. Hinkston has not made such a showing.
{¶29} An objection to the text messages would not have been successful. As
discussed, the text messages were admissible nonhearsay statements. The decision
not to object during the assistant prosecuting attorney’s closing argument was likely
a strategic one in light of the latitude given counsel during argument. And even if an
objection had been made, we conclude that the result of the proceedings would not
have been different. The fifth assignment of error is overruled.
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{¶30} The judgments of the trial court are affirmed.
Judgments affirmed.
C UNNINGHAM , P.J., and S TAUTBERG , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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