[Cite as State v. Quarles,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2014 CA 72 : v. : T.C. NO. 13CR455 : ANTHONY QUARLES : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the ___31st___ day of ____July____, 2015.

...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409 Attorney for Defendant-Appellant

.............

FROELICH, P.J.

{¶ 1} After a jury trial in the Clark County Court of Common Pleas, Anthony

Quarles was convicted of failure to comply with the order or signal of a police officer, in

violation of R.C. 2921.331, a third-degree felony. The trial court sentenced Quarles to

three years in prison, ordered him to pay restitution, and suspended his driver’s license -2- for 10 years.

{¶ 2} Quarles appeals from his conviction, claiming that his conviction was

against the manifest weight of the evidence, that the trial court abused its discretion

concerning the admissibility of several pieces of evidence, and that the trial court erred in

allowing the prosecutor to state his reasons for an objection in front of the jury. For the

following reasons, the trial court’s judgment will be reversed and the matter will be

remanded for further proceedings.

I. Manifest Weight of the Evidence

{¶ 3} Quarles’s first assignment of error claims that his conviction was against the

manifest weight of the evidence.

{¶ 4} A weight-of-the-evidence argument “challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581,

; see Eastley v. Volkman,

,

,

, ¶ 19 (“‘manifest weight of the evidence’ refers to a greater amount of credible

evidence and relates to persuasion”). When evaluating whether a conviction is against

the manifest weight of the evidence, the appellate court must review the entire record,

weigh the evidence and all reasonable inferences, consider witness credibility, and

determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” State v. Thompkins,

,

(1997), citing State v. Martin,

,

(1st

Dist. 1983). -3- {¶ 5} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight of

the evidence only in exceptional circumstances. Martin,

.

{¶ 6} At trial, the State presented the testimony of Paul Herald and Jennifer Scott,

both police officers for the City of Springfield. Their testimony established the following

facts.

{¶ 7} At approximately 3:52 a.m. on May 2, 2013, Officer Herald was in a marked

cruiser in the area of Lexington Avenue and South Belmont, a residential area with a

speed limit of 35 mph. The officer heard a vehicle accelerating rapidly toward the

intersection (the vehicle “sounded like a loud muffler”), and he observed a vehicle run the

stop sign at the intersection. Herald described the vehicle as a teal, four-door,

four-wheel-drive, 1995 Chevy Tahoe. Officer Herald got behind the Tahoe, accelerated,

activated his overhead lights, and attempted to make a traffic stop. The Tahoe was

travelling “well over 45 or 50 miles per hour” and did not stop. Herald pursued the

vehicle. Officer Herald was able to relay the license plate number for the vehicle, and the

dispatcher determined that the registered owner was Laura Cline.

{¶ 8} Near the beginning of the chase, the Tahoe’s driver turned on the interior

dome light and reached into the center console. Herald saw that the driver was a male

wearing a black t-shirt. Herald broadcasted the Tahoe’s speed and direction to other -4- officers, who came to assist him. Officer Herald and the Tahoe made “several circles in

this area,” and Herald continued to relay traffic conditions and other information over his

radio. Officer Scott notified Herald that she would attempt to deploy stop sticks at the

intersection of Harrison and East. As Officer Herald approached that intersection, he

observed that Officer Scott failed to deploy the stop sticks, and he and the Tahoe

continued through the intersection.

{¶ 9} Eventually, the Tahoe, followed by Officer Herald’s cruiser, turned into a

dead-end street. Officer Scott and Sgt. Hopper pulled in behind Herald. The Tahoe

turned around in a grassy area and drove toward the officers; the headlights of Herald’s

cruiser and the cruiser’s spotlight shone on the Tahoe. When the driver was 20 to 30

feet away, Herald could see the driver’s face and that the driver’s left arm, which was

hanging out the window, had “a large amount of tattoos.” The Tahoe drove between

Scott’s and Hopper’s vehicles, nearly striking them.

{¶ 10} The chase continued, and the Tahoe accelerated to over 60 mph.

Another officer deployed stop sticks. The stop sticks were unsuccessful at stopping the

Tahoe, but the cruisers of two other officers who were backing up Herald were disabled.

Soon after, Officer Herald was told to terminate the pursuit, and he pulled over. An Ohio

State Trooper who was assisting in the pursuit indicated that he would attempt to get

permission to continue.

{¶ 11} The Tahoe was later located, abandoned, within several blocks of where

the pursuit terminated. Inside the vehicle were photo booth-type photos, which Officer

Herald recognized as being of the driver. The vehicle also contained Clark County court

documents, which Officer Herald described as “like yellow copies of an affidavit, like the -5- defendant’s copy that they get served during arrest, and some other court papers.” The

document had the name Anthony Wayne Jackson Quarles and a Social Security number.

{¶ 12} Officer Herald looked up Quarles’s name and social security number in the

law enforcement computer system and saw book-in photos of Quarles; the book-in

photos included photos of Quarles’s face, profile, and tattoos on his arms and back.

Herald testified that, after looking at the book-in photos, he recognized Quarles as the

driver and that the tattoos on Quarles’s left arm were consistent with those that Herald

had observed on the driver.

{¶ 13} At trial, Officer Herald identified Quarles as the driver of the Tahoe.

Quarles was asked to display his left arm during Officer Herald’s testimony, and Herald

was asked if he could confirm that those were the same tattoos. Herald responded, “It

looks like there is some new work, but yes, very consistent with what I saw.”

{¶ 14} Officer Scott testified at trial that she saw the driver for “a split second.”

She stated that Quarles’s face was “consistent in appearance” to the driver’s, but she

could not positively identify Quarles as the driver.

{¶ 15} Officer Herald did not ask for the car to be tested for fingerprints. He

explained that it is often difficult to distinguish fingerprints when multiple people might use

the vehicle. Herald also indicated that he did not collect the court documents and

photographs from the car; they remained in the Tahoe when the vehicle was towed by the

police. (Quarles did not make a Crim.R. 29 motion at the conclusion of the State’s case.)

{¶ 16} Quarles testified on his own behalf. He stated that he was in Berthoud,

Colorado on May 2, 2013, working for his aunt, Stephany Simpson. Quarles stated that

he did landscaping, landscape architecture work, and tree removal. As for May 2 -6- specifically, Quarles stated that he worked on removing an enormous oak tree at the back

of a house; the tree was cracked down the middle, and its trunk had a rotted cavity.

Quarles stated that he remembered it, because he found the tree “spooky.” Quarles

testified that the tree removal took two days, and he worked six hours each day. Quarles

stated that he drove to Colorado on April 3, 2013, stayed with Simpson while he was

there, and returned to Springfield on June 6, 2013.

{¶ 17} Quarles testified that he signed two documents as part of his work for

Simpson. The first document was “a contract for a 1099,” saying that Quarles was

paying his own taxes. The second was a timesheet showing how much he had worked.

{¶ 18} With respect to his relationship to the owner of the car, Quarles testified

that Laura Cline was the mother of a former girlfriend. He stated that the photograph of

him that was found in the car was taken in Pennsylvania around Christmastime 2012, and

the court paperwork concerned a ticket he had received in October 2012. Quarles

testified that he had last driven the Tahoe (together with Cline’s daughter and her

children) on October 27, 2012, when he had received a traffic citation for driving on a

suspended license, and that he had been driving his own Chevy Silverado in May 2013.

Quarles stated that he stopped seeing Cline’s daughter in June or July 2013.

{¶ 19} Quarles denied that he was involved in a high-speed chase in Springfield,

Ohio, on May 2, 2013, and he reiterated that he was in Berthoud, Colorado on that date.

Quarles further testified that he knows several people with tattoo “sleeves”, saying

“nowadays tattoos are so common, everybody has them. Very common.”

{¶ 20} On cross-examination, Quarles acknowledged that he does not have a

valid driver’s license and did not when he was driving his Silverado. He also stated, -7- without objection, that he did not file taxes last year and works “under the table now.”

{¶ 21} Officer Herald testified again, as a rebuttal witness, that Quarles could not

have been in Colorado on May 2 at 3:52 a.m., because he (Herald) was “positive that that

is the gentleman that was driving that car.” The prosecutor showed Herald copies of

court papers for the October 27, 2012 traffic citation, over Quarles’s objection. Herald

testified that the documents in the Tahoe included court papers, not just the traffic

citation, and that the court papers for the October 27, 2012 citation would have been

given to Quarles after that date. The prosecutor also showed Herald, over Quarles’s

objection, court documents related to a February 2, 2013 traffic offense; Herald again

testified that, if Quarles had not been in the Tahoe after October 27, 2012, those court

papers could not have been in the Tahoe. On cross-examination, Herald acknowledged

that he had only looked at the name on the court papers in the Tahoe, and that the

documents presented in court were not the actual documents located in the vehicle.

{¶ 22} On appeal, Quarles claims that his conviction was against the manifest

weight of the evidence, because Officer Herald’s eyewitness identification was unreliable,

there was no fingerprint evidence to support the identification, and there was evidence

that Quarles was in Colorado at the time of the offense.

{¶ 23} “Every criminal prosecution requires proof that the person accused of the

crime is the person who committed the crime. * * * Like any fact, the state can prove the

identity of the accused by ‘circumstantial or direct’ evidence.” State v. Tate,

,

,

, ¶ 15. Here, the State provided the

eyewitness testimony of Officer Herald, who testified that the Tahoe’s driver was

illuminated by Herald’s cruiser’s headlights and spotlight after the Tahoe turned around -8- on the dead-end street. Herald stated that he saw the driver’s face, as well as the

driver’s left arm, which was hanging out the Tahoe’s window throughout the chase and

had a large number of tattoos. The Tahoe was located shortly after the chase, and at

that time, Herald was able to identify Quarles as the driver by searching the computer

system for his name and Social Security number, as provided by the court documents

found in the vehicle.

{¶ 24} Moreover, the State provided evidence that Quarles was associated with

the Tahoe; it belonged to his then-girlfriend’s mother, was primarily used by the girlfriend,

and Quarles had driven that vehicle in the past. Court documents and photographs of

Quarles were found within the vehicle. This evidence, in conjunction with Officer’s

Herald’s identification, provided substantial evidence that Quarles was the driver during

the pursuit.

{¶ 25} Quarles presented evidence that he was in Colorado working as an

arborist for his aunt on May 2, 2013. Quarles described documents that substantiated

his claim (the documents themselves were not admitted into evidence), but there was

evidence that Quarles had no government documents, such as tax records, to

substantiate that employment. The credibility of the witnesses and the weight to be

given to their testimony were matters for the jury, as the trier of fact, to determine.

Considering all of the evidence admitted at trial, the jury did not lose its way when it

determined, from the totality of the evidence, that Quarles was the driver of the Tahoe.

{¶ 26} The first assignment of error is overruled.

II. Admissibility of Defendant’s Documentary Exhibits

{¶ 27} In his second assignment of error, Quarles claims, in part, that the trial -9- court abused its discretion when it excluded documents proffered by him at trial.

{¶ 28} Quarles testified that he had received two documents relating to his work

for Simpson. Immediately before defense counsel showed the exhibits to Quarles during

his testimony, the prosecutor objected, in the jury’s presence (as opposed to a sidebar

discussion), stating:

[PROSECUTOR]: Your Honor, I object to both of these documents. This is

hearsay within hearsay. Under Evidentiary Rule 802, it cannot be admitted

under business records, exceptionally [sic] because the custodian of it is

not here to testify.

And moreover, that exception does not apply to the facts that

indicate there is a lack of trustworthiness. In the present case the alleged

party is actually the defendant’s aunt. She has no business address, owns

her apartment. She told authorities she had no records before.

We can – continued this trial twice to give her an opportunity to

appear. She has not done so. The documents had been altered by

adding dates of employment; and again, our initial two trial dates,

September 14th and October 8th, this document was never produced until

after those trial dates. Therefore, the lack of trustworthiness, these

documents cannot be introduced.

[DEFENSE COUNSEL]: Your Honor, these – they were given him in the

normal course of business, in her business. It’s got her gardening,

independent contractor agreement. It’s got his signature. So surely, he

can authenticate something that he actually signed on the spreadsheet. -10- It was given to him so that he would know the amounts that were

paid. She happened to put the dates on it. It’s got the date on there. It’s

got his name at the top.

And as far as her attendance, shortly after a discussion, we believe

that she was scared in – based on how she does her business with tax

purposes. She was afraid to attend because she didn’t want to incriminate

herself on how she conducts her own business. But that has no bearing on

whether he was there or not.

THE COURT: Can I see the document?

[PROSECUTOR]: Your Honor, may I approach?

THE COURT: I just want to see the documents.

(Judge reading.)

THE COURT: You’re okay to the admissibility [sic] of the document?

[THE PROSECUTOR]: In the absence of this person to come in and testify, yes,

there is no way for this to come in.

THE COURT: Are you offering these exhibits in at this time?

[DEFENSE COUNSEL]: Yes. I was going to show him.

THE COURT: You can show him the documents. As far as admissibility, I’ll

reserve ruling on that unless or until somebody can authenticate the document.

{¶ 29} After the documents were marked, defense counsel asked Quarles about

the documents. Quarles identified Exhibit 1 as “the contract stating that I pay for my own

taxes and * * * of the equipment that I borrowed from her.” Quarles stated that the

document had both his and his aunt’s signatures and his Social Security number, and that -11- he was present when the document was signed. Quarles stated that the first set of

signatures were made while they were in Simpson’s office in her home in the downstairs

of her house. The second set of signatures at the bottom were made later, after Quarles

turned in Simpson’s equipment.

{¶ 30} Quarles testified that Exhibit 3 was the same contract that was signed.

He stated that the “only thing that was added to it was the dates that was written on here

from the work order, and that’s the only difference.” A time-stamp appears at the top.

{¶ 31} Finally, Quarles identified Exhibit 2 as “the days marked for the work order

of a workbook, the days that I worked. It’s on the books for 1099 purposes.”

{¶ 32} At the conclusion of the defense case, defense counsel offered into

evidence Exhibits 1, 2, and 3, as well as State’s Exhibit E, a letter from Simpson (the aunt)

that the prosecutor had used for impeachment. The State objected on hearsay grounds.

The trial court agreed and asked defense counsel if there was a particular exception that

applied. Counsel responded that Quarles authenticated the documents, that he was a

party to the contract with his aunt, and that the information was coming “just as much from

him as it is from her. It was their mutual agreement.” The prosecutor responded that

Simpson had created and provided the documents to Quarles. The court sustained the

State’s objection, finding that the business record exception to the hearsay rule did not

apply.

{¶ 33} “ ‘Proving the contents of a writing presents problems with hearsay,

authentication, and the best evidence rule.’ ” SFJV v. Ream,

,

,

(2d Dist.), quoting State v. Carter, 4th Dist. Ross

No. 99 CA 2479,

(Sept. 26, 2000). -12- {¶ 34} Authentication is governed by Evid.R. 901. “Evid.R. 901(A) requires, as a

condition precedent to the admissibility of evidence, a showing that the matter in question

is what it purports to be.” State v. Simmons, 2d Dist. Montgomery No. 24009,

. The threshold standard for authenticating evidence is low, State

v. Wiley, 2d Dist. Darke No. 2011 CA 8,

, and Evid.R. 901(B)

provides examples of numerous ways that the authentication requirement may be

satisfied. The most commonly used method is testimony that a matter is what it is

claimed to be under Evid.R. 901(B)(1). State v. Renner, 2d Dist. Montgomery No.

25514,

.

{¶ 35} For purposes of Evid.R. 901, Quarles authenticated Exhibits 1, 2, and 3

during his direct examination, when he identified the documents as documents prepared

by Simpson for purposes of his employment as an independent contractor for her.

Quarles authenticated the signatures at the top of the contract (Exhibits 1 and 3), stating

that he and his aunt had signed the contract at her house at the same time. Quarles

indicated that the signature on the bottom was his, and the signature was made when he

returned Simpson’s equipment.

{¶ 36} An authenticated document may be inadmissible if its contents violate the

hearsay rules. “Hearsay” is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” Evid.R. 801(C). In general, hearsay is not admissible. Evid.R.

802. However, there are several exceptions to the hearsay rule.

{¶ 37} In Ohio, a business record is admissible as competent evidence “if the

custodian or the person who made such record * * * testifies to its identity and the mode of -13- its preparation, and if it was made in the regular course of business, at or near the time of

the act, condition, or event, and if, in the opinion of the court, the sources of information,

method, and time of preparation were such as to justify its admission.” R.C. 2317.40;

see also Evid.R. 803(6) (providing exception to hearsay rule for records of regularly

conducted activity).

{¶ 38} The business records exception has its own authentication requirement

that must be met before the rule applies. Ohio Receivables, L.L.C. v. Williams, 2d Dist.

Montgomery No. 25427,

. “A witness authenticating a business

record must be sufficiently familiar with the operation of the business and with the

circumstances of the record’s preparation, maintenance and retrieval that he or she can

reasonably testify on the basis of this knowledge that the record is what it purports to be,

and that it was made in the ordinary course of business consistent with the elements of

Evid.R. 803(6).” State v. Jackson, 2d Dist. Montgomery No. 24430,

. “Generally, the business record exception requires that some person testify as to the

regularity and reliability of the business activity involved in the creation of the record.”

Ohio Receivables at ¶ 14.

{¶ 39} In addition, we note that, to prove the content of a writing, the best

evidence rule requires introduction of the original writing. Evid.R. 1002. A duplicate is

admissible to the same extent as the original, unless a genuine question exists as to the

authenticity of the original or, under the circumstances, it would be unfair to admit the

duplicate. Evid.R. 1003. Other evidence of the document’s contents may be

introduced upon proof that “[a]ll originals are lost or have been destroyed, unless the

proponent lost or destroyed them in bad faith.” Evid.R. 1004(1). -14- {¶ 40} Quarles was not required to comply with the business record exception,

Evid.R. 803(6), to introduce Exhibit 1, the contract between Simpson and him. The

document itself was not hearsay; it was the best evidence of the existence of a contract

between Simpson and Quarles. See JLJ Inc. v. Rankin & Sourser, Inc., 2d Dist.

Montgomery No. 23685,

, ¶ 41. Having been properly authenticated by

Quarles under Evid.R. 901, the trial court erred in failing to admit Exhibit 1.

{¶ 41} However, Quarles could not authenticate Exhibit 2, the monthly time cards

for April, May and June 2013, for purposes of Evid.R. 803(6). Exhibit 2 reflected the

days that Quarles worked and the pay that he earned, and are clearly business records.

However, Quarles did not maintain the exhibit as part of his business records; he obtained

the document from his aunt. And, although Quarles appeared to have knowledge of how

his aunt maintained these particular records, there was no evidence that he had a

working knowledge of her general record-keeping system for her business, particularly

regarding the creation and retention of business documents. Accordingly, the trial court

did not err in ruling that Exhibit 2 was inadmissible as hearsay.

{¶ 42} The trial court also did not err in excluding Exhibit 3. Exhibit 3 was the

same as Exhibit 1, but included handwritten dates added by Simpson. Absent

Simpson’s testifying about them, the dates were hearsay and did not fall under the

business record exception.

{¶ 43} Although the trial court should have admitted Exhibit 1, we cannot find that

Quarles was prejudiced by the trial court’s ruling. Quarles testified about the substance

of his exhibits, and his testimony was not stricken. The State cross-examined him

extensively about all of the exhibits, and both parties discussed the documents in their -15- closing arguments. Accordingly, even if the trial court had erred in excluding the

documents themselves, the record does not reflect that their exclusion was prejudicial.

{¶ 44} This portion of Quarles’s second assignment of error is overruled.

III. Admissibility of Purported Copies of Court Documents Found in Vehicle

{¶ 45} As part of Quarles’s second assignment of error, he also argues that the

trial court erred in allowing the State to introduce copies of court documents that were

purportedly found in the Tahoe by Officer Herald.

{¶ 46} During Officer’s Herald’s rebuttal testimony, the prosecutor showed Officer

Herald copies of two packets of documents concerning Quarles from the Clark County

Municipal Court. Exhibit F consisted of certified copies of documents from the record for

Case No. 12TRD12796. The exhibit included the citation for driving under suspension

and for expired tags issued to Quarles on October 27, 2012. Also included were pages

showing court hearing dates, information about Quarles’s arraignment, and the court’s

sentence.

{¶ 47} Exhibit G appears to be the record of Case No. 13TRD1519, a traffic case

in which Quarles was charged with driving under suspension and speeding. The first

page of Exhibit G was a judgment entry issued by the municipal court on March 13, 2013,

ordering Quarles to appear on April 3, 2013 to show cause why he should not be

punished for failure to complete community service; the judgment entry page of Exhibit G

related to both Case Nos. 13TRD1519 and 12TRD12796. Unlike Exhibit F, Exhibit G did

not contain certified copies of the municipal court records.

{¶ 48} Defense counsel objected to the prosecutor’s use of the documents. He

argued that Exhibits F and G were not the actual documents located in the Tahoe, and -16- that he (defense counsel) had never seen the documents found in the vehicle. The

prosecutor indicated that the exhibits would impeach Quarles’s testimony that he had not

driven the Tahoe since he received the ticket on October 27, 2012. The trial court

overruled the objection.1

{¶ 49} To be admissible, State’s Exhibits F and G needed to be relevant.

Relevant evidence is generally admissible whereas irrelevant evidence is not. Evid.R.

402. “Relevant evidence” is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Evid.R. 401.

However, even relevant evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury. Evid.R. 402; Evid.R. 403(A). Decisions regarding the admissibility of evidence

at trial are within the broad discretion of the trial court. State v. Lang,

,

,

, ¶ 86; State v. Haines,

,

,

.

{¶ 50} During Officer Herald’s direct examination, Herald described the

documents in the vehicle as follows: “They were Clark County, Ohio court documents,

such as like yellow copies of an affidavit, like the defendant’s copy that they get served

during arrest, and some other court papers.” Herald stated that the papers stated

Quarles’s name, but he did not provide further information about the documents.

1 The record does not indicate that the State moved to admit Exhibits F and G at the conclusion of Herald’s rebuttal testimony, but the record reflects they were treated as admitted. The transcript lists them as admitted. Moreover, Defense Exhibits 1-3 and State’s Exhibit C, which the court ordered not to be admitted, have a post-it note stapled to them stating that they were not admitted; Exhibits F and G do not have a similar post-it note. -17- {¶ 51} During Quarles’s testimony, Quarles was asked if he recalled the

paperwork that may have been left in the Tahoe. Quarles responded, “I believe it was a

ticket that I got over in German Township by the mall in October the year before, ’12.”

Quarles further testified that he stopped driving the Tahoe “[w]hen I got the ticket. I got

tired of driving with suspensions.”

{¶ 52} During cross-examination, the prosecutor asked Quarles if he was

supposed to go back to court for the October 2012 traffic ticket. He specifically asked if

the case went on until June 2013, whether the court had issued a show cause order on

April 3 because he did not appear, and whether Quarles had disregarded the court cases

and gone to Colorado. Quarles testified that “[i]t wasn’t brought to my attention, probably

even slipped my mind about going to court on that day.” (Tr. 97) The prosecutor also

asked Quarles about getting the October 2012 ticket, and Quarles agreed he was driving

the Tahoe when he got the ticket.

{¶ 53} When Officer Herald was called as a rebuttal witness, he repeated that he

had observed court papers in the Tahoe on May 2, 2013. After showing Herald Exhibit F,

the prosecutor asked the following questions:

Q. Okay. And you heard the defendant’s testimony that he had not been

back in this car since he got this traffic ticket on October 27, 2012, I believe;

is that correct?

A. Correct.

Q. Is it possible that the officer pulled him over, gave him a ticket, and

actually gave him the court documents?

A. No, sir. -18- Q. What does an officer actually give someone when they pull them over for

a moving violation?

A. We give them the golden – goldenrod copy of the inside of this that states

the charge and the court date and his information.

Q. So when you found this abandoned car at 510 South Huber, it had actual

court documents in there; is that correct?

A. Yes, sir.

Q. Okay. So it’s not possible that it was just his ticket from October 27th.

It had to be documents that he got after that date.

A. Correct.

Q. Thank you. Officer Herald, I’m going to give this to you one more time.

I have one more question. Do these court documents indicate dates on

which the defendant was supposed to be in court?

A. Yes. They did, but I can’t recall the date.

Q. Okay. If you examine that document. Does that indicate in that

particular case the defendant was supposed to be in court on April 3rd,

2013?

A. Yes.

{¶ 54} The prosecutor then showed Exhibit G to Officer Herald and elicited

testimony that Exhibit G concerned another traffic offense that occurred on February 2,

2013. The prosecutor then asked, “Therefore, if the defendant had not been in that

vehicle after October 27, 2012, there is no way those court papers could have been in

there either.” Officer Herald responded, “No.” -19- {¶ 55} On cross-examination, defense counsel asked Herald if he knew when

Quarles had been given copies of the court papers found in the Tahoe. Herald said that

he did not. Defense counsel asked the officer to look at Exhibit F, and Herald testified

that the document mentioned events that occurred as late as June 26, 2013, which was

after May 2, 2013. Defense counsel then asked:

Q. Are you telling the jury that the paperwork that you went over that was

found in the vehicle had each of those event dates on it, from 3/13 – I think

there was a couple days in March, a couple dates in June. Did you look at

that part of the paperwork that was found in the vehicle?

A. No, I didn’t.

Q. What part of the paperwork did you actually look at?

A. The part that said Anthony Wayne Jackson Quarles, the affidavit.

Q. So as far as you know, that paperwork that you looked at had none of

those dates on it.

A. As far as I know.

Q. That’s because we don’t have that actual paperwork here today.

A. Yes.

{¶ 56} Although Officer Herald testified that court documents related to Quarles’s

October 27, 2012 traffic offense would have been created and provided to Quarles

sometime after October 27, there is nothing in Officer Herald’s testimony or in Quarles’s

testimony to indicate that the court documents in the Tahoe were related to the October

27 (or the subsequent February 2) ticket. Herald repeatedly testified that he looked only

at the portion of the ticket affidavit that had Quarles’s name and identifying information. -20- The officer did not indicate the court documents related to the October 27 ticket, and

Quarles had indicated that he had had prior driving under suspension traffic cases. In

short, there is nothing in the record to support a conclusion that Exhibits F and G were the

documents in the Tahoe.

{¶ 57} The actual documents in the Tahoe were not collected, and they were not

presented as evidence at the trial. The record does not support a conclusion that

Exhibits F and G were the documents in the Tahoe and, thus, we fail to see how they were

relevant to the trial. Moreover, because Exhibit G did not contain certified copies, that

exhibit was inadmissible as unauthenticated hearsay.

{¶ 58} Finally, we cannot conclude that the admission of Exhibits F and G was

harmless. The admission of the exhibits may have led the jury to believe that, although

these were not the actual papers found in the Tahoe, they were copies of the documents

and, therefore, Quarles must have been lying when he (Quarles) testified that he had not

driven the Tahoe since October 2012. The prosecutor argued as much when he said,

“[T]he guy left his court papers in there, court papers which couldn’t have been in there if

he hadn’t been in that car since October 27th, so clearly, he’s lying to you about that.”

{¶ 59} Moreover, the documents contain information about Quarles’s conduct

during those cases, which had no bearing on the case before the jury and were prejudicial

to Quarles. Exhibit F indicated that Quarles had pled guilty to both charges on the traffic

ticket, and the record showed his sentence. The exhibit further indicated that there were

three orders for bench warrants and a hearing set on a show cause order. The final date

for the show cause order was June 26, 2013, which was after the May 2, 2013 offense at

issue; thus, this page of Exhibit F could not have been in the Tahoe when it was located -21- by Officer Herald.

{¶ 60} Exhibit G concerned a February 2013 traffic ticket, which Quarles received

while driving a different vehicle, not the Tahoe. The traffic offenses referenced in Exhibit

G included a speeding offense, which could have led the jury to believe that Quarles was

more likely to speed through residential areas on May 2. Exhibit G included information

that Quarles had failed to appear in court when ordered in April 2013 and was required to

address a contempt charge. Exhibit G indicated Quarles’s sentence for the February

2013 ticket. Another page of the exhibit showed that Quarles was arrested on June 13,

2013. The last two pages of Exhibit G appear to be printouts of the municipal court’s

online case summaries, one of which purportedly indicated that on May 5, 2013, Quarles

was involved in another offense while driving the Tahoe (the vehicle information was

highlighted).

{¶ 61} Both the May 5, 2013 incident and the June 13, 2013 arrest occurred after

the May 2, 2013 offense at issue, and it was impossible for the pages regarding these

events to be in the Tahoe on May 2, 2013. Quarles was unfairly prejudiced by the

implication that these unauthenticated documents were in the Tahoe on May 2. In

addition, the reference in an unauthenticated document to Quarles’s being involved in

another traffic offense with the Tahoe on May 5, 2013 directly contradicted Quarles’s

testimony that he had not driven the Tahoe since October 27, 2012 and was prejudicial.

In summary, based on the information contained in Exhibits F and G, we cannot conclude

that the erroneous admission of these exhibits, one of which was unauthenticated, was

harmless, i.e., that there was no reasonable probability that the outcome of Quarles’s trial

would have been different but for the error. -22- {¶ 62} This portion of Quarles’s second assignment of error is sustained.

IV. Stating Reasons for Objection in Open Court

{¶ 63} Finally, Quarles raises in his second assignment of error that the trial court

erred in allowing the prosecutor to object to Quarles’s documentary evidence in front of

the jury. Quarles cites to the prosecutor’s argument, quoted above, that Exhibits 1-3

were untrustworthy, because they had been altered, they were provided to the State by

Quarles after the trial had been continued twice, and the source of the documents was

Quarles’s aunt, who had no business address and had previously told authorities that she

had no records. Quarles argues that the prosecutor did not present any witnesses to

support his argument, yet was allowed to make his argument in open court. We infer

Quarles’s argument to be that the prosecutor engaged in misconduct.

{¶ 64} In reviewing claims of prosecutorial misconduct, the test is whether the

prosecutor’s remarks were improper and, if so, whether those comments prejudicially

affected the substantial rights of the defendant. State v. Jones,

,

(2000). The touchstone of analysis is the fairness of the trial, not the

culpability of the prosecutor.

quoting Smith v. Phillips,

,

,

(1982). Where it is clear beyond a reasonable doubt that the jury

would have found the defendant guilty, even absent the alleged misconduct, the

defendant has not been prejudiced, and his conviction will not be reversed. See State v.

Underwood, 2d Dist. Montgomery No. 24186,

. We review

allegations of prosecutorial misconduct in the context of the entire trial. State v.

Stevenson, 2d Dist. Greene No. 2007-CA-51,

, citing Darden v.

Wainwright,

,

,

(1986). -23- {¶ 65} We agree with Quarles that the prosecutor’s reasons for objecting to

Exhibits 1-3 should not have been expressed in front of the jury. Crim.R. 103(C),

regarding rulings on evidence in the hearing of a jury, provides, “In jury cases,

proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible

evidence from being suggested to the jury by any means, such as making statements or

offers of proof or asking questions in the hearing of the jury.” As expressed by the

Florida Court of Appeals,

[A]ll trial lawyers know that so-called speaking objections are improper, as

they constitute nothing less than unauthorized communications with the

jury. Such objections characteristically consist of impermissible editorials

or comments, strategically made by * * * lawyers to influence the jury.

They are distinguishable from legitimate objections which simply state legal

grounds that arguably preclude the introduction of the evidence at issue.

Where an objection requires more than a simple statement of such legal

grounds, experienced trial lawyers know they need to seek a side bar

conference or ask the court to excuse the jury so that more thorough

arguments can be made.

Michaels v. State,

(Fla.Ct.App. 2000).

{¶ 66} By stating his reasons in front of the jury, the prosecutor informed the jury,

without any evidentiary support, that he believed the documents to be untrustworthy (for a

variety of reasons) and that Simpson was not a credible businessperson. The State

further commented on the absence of Simpson, a potential witness for Quarles. The trial

court did not provide a limiting instruction to the jury to disregard the arguments regarding -24- Exhibits 1-3. (The court later provided a general instruction during jury instructions that

opening and closing arguments of counsel are not evidence, but it did not reference

arguments concerning speaking objections.)

{¶ 67} In its brief, the State asserts that Quarles was not prejudiced by the

prosecutor’s comments, because the prosecutor’s objections were followed by

arguments of defense counsel in open court, but defense counsel’s only choice was to try

to un-poison the well. And, because the trial court did not immediately rule on the

admissibility of Quarles’s exhibits, both parties proceeded to question Quarles about

them as if they were admissible. Both parties discussed the documents and Simpson in

their closing arguments.

{¶ 68} Although the prosecutor was wrong to make a speaking objection to

Quarles’s exhibits and the trial court erred in allowing such an objection to occur in front of

the jury, we need not decide whether such conduct affected Quarles’s substantial rights.

Having concluded that this matter must be reversed due to the admission of State’s

Exhibits F and G, this issue is moot.

{¶ 69} Quarles’s second assignment of error is sustained in part and overruled in

part.

V. Conclusion

{¶ 70} The trial court’s judgment will be reversed, and the matter will be

remanded for further proceedings.

.............

FAIN, J. and HALL, J., concur.

Copies mailed to: -25- Ryan A. Saunders Hilary Lerman Hon. Douglas M. Rastatter