OPINIONDefendant Michael Curtis appeals a judgment of the Municipal Court of Canton, Stark County, Ohio, convicting and sentencing him for one count of petty theft in violation of R.C. 2913.02. Appellant assigns five errors to the trial court:

ASSIGNMENTS OF ERRORS ASSIGNMENT OF ERROR NO. 1

THE APPELLANT WAS DENIED HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW BY PERMITTING IDENTIFICATION TESTIMONY BASED ENTIRELY UPON THE CONTENTS OF A SURVEILLANCE VIDEOTAPE WHILE DENYING APPELLANT'S REQUEST TO ALLOW THE JURY TO VIEW THE VIDEOTAPE IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, EVID. R. 1002;401.

ASSIGNMENT OF ERROR NO. 2

THE APPELLANT WAS DENIED HIS RIGHTS TO A FAIR TRIAL, AND DUE PROCESS OF LAW BY THE TRIAL COURT'S FAILURE TO EXCLUDE TESTIMONY TO PROVE THE CONTENTS OF A SURVEILLANCE VIDEOTAPE WHEN THE VIDEOTAPE WAS NOT AVAILABLE FOR REVIEW BY APPELLANT AND/OR THE JURY IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION AND EVID. R. 602; 701; 1002.

ASSIGNMENT OF ERROR NO. 3

THE MISCONDUCT OF THE PROSECUTOR IN REFERRING TO THE APPELLANT'S PREVIOUS BAD ACTS AND IN FAILING TO PRODUCE THE SURVEILLANCE VIDEOTAPE WERE NOT HARMLESS ERROR AND SO INFECTED THE TRIAL WITH UNFAIRNESS AS TO MAKE APPELLANT'S CONVICTION A DENIAL OF DUE PROCESS UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.

ASSIGNMENT OF ERROR NO. 4

NO ACTIONS BY THE TRIAL JUDGE COULD HAVE REMOVED THE EFFECT OF THE PROSECUTOR'S PERSISTENT AND CUMULATIVE MISCONDUCT FROM THE JURORS THEREBY DENYING APPELLANT HIS RIGHT TO A FAIR TRIAL UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.

ASSIGNMENT OF ERROR NO. 5

CONSTITUTION ERRORS WERE MADE AT TRIAL WHICH RESULTED IN A DENIAL OR INFRINGEMENT OF MR. CURTIS' RIGHTS SO AS TO RENDER THE JUDGMENT VOID OR VOIDABLE UNDER THE UNITED STATES AND OHIO CONSTITUTIONS.

At trial, the State presented evidence appellant, a bricklayer for Republic Engineered Steel, had stolen a 22 pound bag of nickel shot. On June 10, 1997, Roger Anderson, whose is also employed by Republic Engineered Steel, reported to the supervisor, Anthony Mucci, that a 22 pound bag of nickel shot used in the steel fabrication process was missing. On 12 to 15 prior occasions, Anderson had made similar reports to Mucci. Because of the on-going thefts, Republic had installed video cameras to monitor locations where the bags of nickel were stored.

Mucci reviewed the June 10 surveillance video tape, which Mucci testified depicted appellant pacing back and forth around the nickel pile. After looking around to see if anyone was watching him, appellant picked up a bag of nickel, and put it under his jacket. Appellant has been employed by Republic for 21 years, but does not work under Mucci nor near the area where the theft occurred.

Mucci called the Plant Protection Department and informed them of the theft, and Thomas Bower, the Supervisor of Security, viewed the video tape. Bower went to the exit gate and checked all departing employees, searching any bags they were carrying. Bower stopped appellant at the exit, and observed him to be carrying a white canvas bag. Bower investigated and found a plastic grocery bag containing a 22 pound bag of nickel shot. Bower instructed appellant to return to the building, and observed him reach inside the bag and discard something into a trash barrel. Later nickel shot was found in the trash barrel. Republic then notified the Stark County Sheriff's Department.

At trial, defense counsel objected to Mucci's testimony regarding what Mucci saw on the plant security video tape. Counsel argued the video tape had not been made available in discovery. The court excused the jury and conducted a discussion on the record, wherein the defense counsel was offered an opportunity to view the video tape. Defense counsel declined, on the State's assertion it was not going to introduce the tape into evidence because the court lacked the proper viewing equipment. The court also refused defense counsel's request to play the video tape for the jury.

During direct examination of James Good, the Manager of Security and Fire for Republic, the State referred to receipts from Morris Scrap Metal, which indicated the company had purchased nickel shot in the past, from "M.L. Curtis or M. C. Curtis". The court sustained appellant's objection to the line of questioning, but the State cross-examined appellant regarding the receipts. The State presented no rebuttal witnesses from Morris Scrap Metal to authenticate the receipts or identify appellant as the person to whom the receipts were issued.

I and IIAppellant maintains he was denied his right to fair trial and due process because the trial court permitted identification testimony placed upon the contents of the surveillance video tape, but neither required the State to play the tape for the jury or permitted appellant to play the tape for the jury. Appellant argues Evid.R. 1002, the Best Evidence Rule, requires the State to introduce a video tape in order to prove the contents thereof.

Evid.R. 1002 provides:

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.

First of all, the record demonstrates the video tape was made available for inspection during discovery, although defense counsel chose not to review it then, or during recess in the trial.

Further, we find the State was not required to present the video tape to bolster the credibility of its witnesses. The record indicates Mucci testified he recognized appellant as the person stealing the nickel, while Bower testified he actually observed appellant in possession of the stolen property, and was able to observe appellant disposing of the property into the trash.

Finally, we find defense counsel waived any objection to the State's failure to present the video tape.

The first and second assignments of error are overruled.

III and IVNext, appellant alleges various acts of misconduct by the State. In State v. Lott (1990), 51 Ohio St.3d 160, the Ohio Supreme Court set forth our standard of reviewing allegations of prosecutorial misconduct. Lott sets forth a two-prong test requiring us to determine both whether the prosecutor's conduct was improper, and if so, whether the misconduct was prejudicial to the substantial rights of the defendant.

Appellant cites two specific instances which he asserts amount to prosecutorial misconduct. The first is the failure to introduce the surveillance video tape into evidence, which we found supra, I, was not improper. The second involves the State's attempt to elicit testimony regarding receipts from Morris Scrap Dealers without authentication of the evidence by a witness from the company. Appellant argues the State's questioning of James Good and appellant regarding the receipts created a clear inference appellant had committed similar bad acts, and had acted in conformity with those prior bad acts on June 10.

Evid.R. 404(B) provides:

Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. The evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The State argues it provided appellant with the name of Paul Morris on its list of witnesses to be called at trial. Paul Morris owns Morris Scrap Metal. Morris did not testify at trial to authenticate the receipts. However, the State asked James Good various questions regarding the receipts, but after the court sustained appellant's objection, did not ask any further questions. When appellant took the stand, he testified he had never gone to Morris Scrap Metal and had never even picked up a bag of nickel. Appellant testified all the canvas bag contained on June 10 was some fruit for his lunch. The State asked appellant if he was aware it was the policy of the Morris shop to record on the receipt the Ohio license plate number of every car from whom it buys scrap metal. Appellant denied knowing anything about that. Over defense counsel's objection, appellant reviewed the receipt, and denied that the license plate listed as, "M.C. Curtis", belonged to him. Appellant testified his Ohio license plate says "M. Curtis".

The trial court instructed the jury the testimony was not admissible to prove appellant had a bad character and acted in conformity with that bad character on June 10. The court informed the jury the evidence was admissible to show another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.

We find the trial court did not err in permitting the State use the receipt from Morris Scrap Metal at trial, in light of the cautionary jury instruction given.

We find no prosecutorial misconduct in the above, and accordingly, assignments of error three and four are overruled.

VGiven the foregoing, we find the trial court did not make constitutional errors which resulted in a denial or infringement of appellant's rights so as to render the judgment void or voidable.

The fifth assignment of error is overruled.

For the foregoing reasons, the judgment of the Municipal Court of Canton, Stark County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence.

By Gwin, J., Farmer, P.J., concur.

Hoffman, J., dissents

I respectfully dissent from the majority opinion.

I IIAs appellant's first and second assignments of error involve the surveillance videotape, I shall address both assignments together.

In his first assignment of error, appellant maintains he was denied his right to a fair trial and due process because the trial court permitted identification testimony based upon the contents of a surveillance videotape, but denied appellant's request to play the tape to the jury. In his second assignment of error, appellant asserts violations of his constitutional rights based upon the trial court's failure to exclude testimony offered to prove the contents of the surveillance videotape when neither appellant nor the jury were permitted to review the tape. Specifically, appellant contends Evid.R. 1002, the Best Evidence Rule, requires the State to introduce the videotape in order to prove the contents thereof.

Evid.R. 1002 provides:

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.

The term "photograph" includes not only still photographs, but also videotapes and motion pictures. Evid.R. 1001(2). "Rule 1002 applies only when a party attempts to prove the content of a writing, recording, or photograph." Paul C. Giannelli Barbara Rook Snyder, Baldwin's Ohio Practice, Rules of Evidence Handbook, Authors' Comment to Evid.R. 1002 (1998).

In the case sub judice, the State offered Mucci's testimony regarding his visual observations of the surveillance videotape in order to identify appellant as the culprit. Mucci's testimony referred specifically to the contents of the videotape, i.e., a depiction of appellant as the individual stealing a bag of nickel shot. Additionally, Bower testified he viewed the tape with Mucci and Mucci identified appellant as the individual stealing the nickel. Further, Good testified he was advised by an employee that the videotape showed appellant stealing nickel. Since the State was utilizing this testimony to prove the contents of the videotape, the State was required to introduce the videotape pursuant to Evid.R. 1002. The fact the State did not have the appropriate equipment with which to play the tape does not make the evidence unavailable or inadmissable. Therefore, I find the trial court erred in permitting the State's witnesses to testify regarding the videotape without permitting the jury to view the tape.

I note appellant's trial counsel was offered the opportunity to view the videotape. Trial counsel chose not to take advantage of that opportunity. Since Mr. Solomon neither asked for a continuance nor a mistrial in order to obtain the proper equipment, I find no error in the trial court's failure to allow him to view the surveillance videotape.

In its Brief to this Court, the State suggests that appellant could have or should have offered the tape into evidence as his own exhibit. Since the videotape constitutes the best evidence regarding its contents, the State was ultimately responsible for introducing such evidence prior to soliciting testimony as to its contents. I find the State's attempt to shift the burden of proving its case to appellant is improper.

I would sustain appellant's first and second assignments of error.

III IVIn his third and fourth assignments of error, appellant asserts the State engaged in prosecutorial misconduct in referring to his previous bad acts and in failing to produce the surveillance videotape.

The test for prosecutorial misconduct is whether the prosecutor's conduct at trial was improper and prejudicially affected the substantial rights of the defendant. State v. Lott (1990), 51 Ohio St.3d 160, cert. denied 112 L.Ed.2d 596; State v.Smith (1984), 14 Ohio St.3d 13.

Initially, I shall address appellant's argument as it relates to the State's failure to produce the surveillance videotape. Upon review of the record, I find the State did, in fact, disclose the existence of the videotape prior to trial and; therefore, the State complied with discovery rules. Though I find no prosecutorial misconduct with regard to the surveillance videotape, I find admission of testimony as to its contents reversible error as discussed in I and II, supra.

Appellant's second allegation of prosecutorial misconduct involves the State's attempt to elicit testimony regarding receipts from Morris Scrap Dealers without authentication of the evidence by a witness from the company. Appellant argues the State's questioning Good and appellant regarding the receipts created a clear inference appellant had committed similar bad acts. In response, the State alleges the line of questioning regarding the receipts was merely an attempt to attack appellant's credibility and to establish motive.

Both the Rules of Evidence and the Ohio Revised Code set forth certain circumstances under which evidence of prior bad acts may be admissible at trial. Specifically, Evid.R. 404(B) provides:

(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Further, R.C. 2945.59 provides:

In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

I note the fact the evidence of prior bad acts was offered to impeach appellant's credibility does not except it from the rule or statute. Unlike the majority, I find the trial court's "cautionary" (Majority Opinion at 7) instruction to the jury as to when other acts evidence is admissible and how it may be used does not cure the prosecutor's questioning regarding Morris Loan in light of the prosecutor's inability to lay a proper foundation for admission of this evidence anymore than instructing a jury as to the way it is to consider an expert's opinion would cure admission of the experts opinion if a proper foundation for that opinion was not established.

Interpreting the above provisions, the Ohio Supreme Court has held that evidence of other acts is admissible if (1) there is substantial proof that the alleged other acts were committed by the defendant and (2) the evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. State v. Lowe (1994), 69 Ohio St.3d 527,530. The Court further noted that Evid.R. 404(B) and R.C. 2945.59 are to be construed against the admissibility and the standard for determining admissibility of such evidence is strict.Id. See also: State v. Broom (1988), 40 Ohio St.3d 277 at syllabus paragraph one.

Although difficult to decipher, each receipt reveals a transaction for numerous pounds of nickel. Each receipt bears a scribble, which may or may not represent an individual's signature. One receipt bears the following: "Pd 5/27/97" and "Ohio M C Curtis". The other receipt bears the following "Ohio M L-Curtis" and "Pd 5/12/96". The incident relative to the charge against appellant occurred on June 10, 1997. The State did not offer any witness to authenticate the receipts. Nor did the State present any evidence establishing Republic had experienced thefts of nickel on or about these dates. Further, the State did not present any evidence showing appellant sold nickel to Morris Scrap. Without such evidence, the only inference which can be drawn from the admission of the receipts is that appellant had previously engaged in illegal activity.

The trial court sustained appellant's counsel's objection to Good's testimony regarding the receipts, however, I find the State's pursuing evidence, which infers appellant committed prior bad acts and acted in conformity with those acts, without laying a proper foundation prejudicially affected appellant's right to a fair trial and; therefore, constitutes prosecutorial misconduct. "The attempt to communicate by innuendo through the questioning of witnesses when the questioner has no evidence to support the innuendo is improper." State v. Williams (1977), 51 Ohio St.2d 112,119. (Citation omitted).

I would sustain appellant's third and fourth assignments of error.

JUDGE WILLIAM B. HOFFMAN.

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Municipal Court of Canton, Stark County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence. Costs to appellant.