[Cite as State v. Richardson,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 26649 : v. : T.C. NO. 14CRB4221 : DARRELL V. RICHARDSON : (Criminal appeal from : Municipal Court) Defendant-Appellant : :

...........

OPINION

Rendered on the ____9th____ day of _____December_____, 2016.

...........

MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant City Prosecutor, 335 W. Third Street, Rm. 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

C. RALPH WILCOXSON, II, Atty. Reg. No. 0061974, 211 Kenbrook Drive, Suite #5, Vandalia, Ohio 45377 Attorney for Defendant-Appellant

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

DONOVAN, P.J.

{¶ 1} Defendant-appellant Darrell V. Richardson appeals his conviction and

sentence for one count of not having a commercial applicator’s license (with a prior

conviction), in violation of R.C. 921.06(A)(1), a misdemeanor of the first degree, and two

counts of acting as a commercial applicator without being licensed to do so, in violation -2-

of R.C. 921.24(B), both misdemeanors of the first degree. Richardson filed a timely

notice of appeal with this Court on November 24, 2014.

{¶ 2} In late 2012, the Pesticide and Fertilizer Regulation Section of the Ohio

Department of Agriculture (DOA) received an anonymous tip that a company named Stop

One Pest Control in Dayton, Ohio, was conducting a pest control business without the

proper licensure. A business conducting the application of pesticides is required to have

a special license granted by the DOA. Additionally, a pesticide business must employ at

least one licensed commercial applicator. Any individual applying pesticides for hire

must possess an applicator’s license or be working for a properly licensed business.

{¶ 3} After an initial investigation, Agricultural Inspection Manager James Belt

became aware that the appellant, Richardson, was working as a pesticide applicator for

Stop One in 2012. Stop One was managed by an individual named Homer Fields, who

created the business in early 2012 after filling out an application to work for a pesticide

business owned by Richardson called Ohio State Pest Control. Fields, however, was

unable to perform manual labor because of a pre-existing elbow injury for which he

received worker’s compensation. Therefore, Fields testified that he managed the

business and scheduled appointments while Richardson agreed to do the actual spraying

of pesticides at their clients’ residences.

{¶ 4} At the time Stop One was incorporated, Fields possessed a valid commercial

applicator’s license. Fields also applied for and was granted a pesticide business license

by the DOA. Fields was listed as the owner of Stop One with the Secretary of State of

Ohio. Fields testified that, although he did not ask, he assumed that Richardson had a

valid commercial applicator’s license at the time that the two men began working together. -3-

Fields further testified that at all times, Richardson held himself out as a licensed pesticide

applicator with approximately twenty-six years of experience in the field. Furthermore,

the evidence adduced at trial established that Richardson funded the incorporation of the

business and paid for all of the supplies and pesticides. Additionally, while both

Richardson’s and Fields’ names were on the corporate account opened at Chase Bank,

both Fields and his wife, Martha, testified that Richardson handled all the business

finances and bank correspondence.

{¶ 5} Richardson did not have an applicator’s license when he worked for Stop

One and had twice been convicted of acting as a commercial applicator without being

licensed in 2008 and 2009. The State argued that Richardson essentially hired Fields

because he was a licensed commercial applicator. Because of Richardson’s past

convictions for acting as a commercial applicator without being licensed, he was unable

to acquire his own license. Once Fields was “hired,” the State asserted that Richardson

directed him to register the name of the new business as Stop One Pest Control. The

State argued that Richardson was using Fields as a straw man to manage the business

because he had the proper licensure. Using Fields’ applicator and pesticide business

licenses, Richardson was able to run Stop One himself while not being properly licensed

to do so. Simply put, the State alleged that Richardson was performing pesticide

application without a license on his own behalf and at his own direction without any

supervision from Fields who was properly licensed by the DOA.

{¶ 6} In the latter part of 2012, Fields began receiving numerous complaints

regarding Richardson’s work performance, i.e. arriving late to jobs and failing to apply the

pesticides correctly. Fields testified that several times, he, accompanied by his wife or -4-

another individual, had to return to the dissatisfied clients’ residences to “retreat” the

bedbug infestations with pesticide. Because of Fields’ prior injury, he was unable to

perform the pesticide application himself. Fields therefore brought someone else to

apply the pesticides at his direction. Because of Richardson’s continued poor job

performance, Fields terminated his employment on December 12, 2012.

{¶ 7} Pertinent to the instant case, the parties stipulated that between September

30, 2012, and December 18, 2012, Fields allowed his business license and his personal

commercial applicator’s license to lapse because he failed to pay late fees associated

with said licensure. The parties also stipulated that Richardson did not possess an

applicator’s license or a pesticide business license at any point during the time he worked

at Stop One.

{¶ 8} Shortly thereafter, the DOA received the anonymous complaint regarding

Stop One’s alleged failure to possess a valid pesticide applicator’s license. The DOA

performed its investigation into the complaint and submitted its findings to the State.

Thereafter, on June 10, 2014, the State filed a complaint in the instant case in Dayton

Municipal Court charging Richardson with five counts of not having a commercial

applicator’s license (with a prior conviction), in violation of R.C. 921.06(A)(1), and five

counts of acting as a commercial applicator without being licensed to do so, in violation

of R.C. 921.24(B).1 At his arraignment on June 12, 2014, Richardson pled not guilty to

1 Two additional charges for not having a commercial applicator’s license (with a prior conviction), in violation of R.C. 921.06(A)(1), and acting as a commercial applicator without being licensed to do so, in violation of R.C. 921.24(B) were brought by the State against Richardson in separate Case No. 2013-CRB-4239. This case was consolidated with the instant case for trial purposes, but both counts in Case No. 2013-CRB-4239 were dismissed by the State at the close of its case in chief. -5-

the charged offenses.

{¶ 9} A jury trial was held in Dayton Municipal Court on September 30, October 1,

and October 2, 2014. At the close of the State’s case in chief, it dismissed six counts in

its complaint, leaving the following four counts to be submitted to the jury: Count I - not

having a commercial applicator’s license (with a prior conviction), in violation of R.C.

921.06(A)(1), regarding an offense committed on September 3, 2012; Count II - acting as

a commercial applicator without being licensed to do so, in violation of R.C. 921.24(B),

also regarding September 3, 2012; Count III - not having a commercial applicator’s

license (with a prior conviction), in violation of R.C. 921.06(A)(1), regarding an offense

committed on December 3, 2012; and Count IV - acting as a commercial applicator

without being licensed to do so, in violation of R.C. 921.24(B), also regarding December

3, 2012.

{¶ 10} The jury found Richardson not guilty of Count I. The jury found Richardson

guilty of Counts II, III, and IV. At disposition on November 20, 2014, the trial court

merged Counts III and IV, and the State elected to proceed with Count IV for sentencing

purposes. On Count IV, the trial court sentenced Richardson to 180 days in jail. On

Count II, the trial court sentenced Richardson to a consecutive sentence of 180 days in

jail, but suspended 180 days of the aggregate one-year sentence. The trial court ordered

Richardson to pay a fine of $1,000.00 and court costs, but suspended the fine. Lastly,

the trial court placed Richardson on three years of supervised probation and ordered him

not to engage in the application of pesticides without a license.

{¶ 11} It is from this judgment that Richardson now appeals.

{¶ 12} Because they are interrelated, we will address Richardson’s first and fourth -6-

assignments of error together as follows:

{¶ 13} “THE TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION FOR

JUDGMENT OF ACQUITTAL.”

{¶ 14} “THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

{¶ 15} In his first assignment, Richardson contends that the trial court erred when

it overruled his Crim.R. 29 motion for acquittal with respect to Count II - acting as a

commercial applicator without being licensed, in violation of R.C. 921.24(B), regarding

the offense which occurred on September 3, 2012. Specifically, Richardson argues that

the State failed to adduce any evidence that the offense for which he was charged in

Count II actually occurred on September 3, 2012. Richardson also asserts his motion

for acquittal should have been granted because the State failed to establish that Counts

III and IV occurred within Dayton, Ohio, the extent of the trial court’s jurisdiction.

Richardson further argues that the State failed to adduce any evidence that the substance

he used to treat his clients’ bedbug infestations was actually a pesticide as defined by

R.C. 921.01. In his fourth assignment of error, Richardson argues that the jury’s guilty

verdicts were against the manifest weight of the evidence.

{¶ 16} Although the State does not raise the issue, we note that the record fails to

establish that Richardson renewed his Crim. R. 29 motion for acquittal at the close of all

the evidence in his jury trial. Here, Richardson moved for acquittal at the close of the

State's case-in-chief, the trial court denied the motion, and Richardson then presented

the testimony of two witnesses for the defense. After resting, the printed record provided

to this Court does not indicate that Richardson renewed his Crim. R. 29 motion for -7-

acquittal. Richardson has therefore failed to preserve his insufficiency argument by not

renewing it at the close of evidence. See State v. Zimpfer, 2d Dist. Montgomery No.

26062, 2014–Ohio–4401, ¶ 42 (appellant preserved his insufficiency argument by making

an unsuccessful Crim. R. 29 motion for acquittal at the close of evidence at trial). It is

generally accepted in Ohio that if counsel fails to make and renew a Crim. R. 29 motion

during a jury trial, the issue of sufficiency is waived on appeal. State v. Beesler, 11th Dist.

Ashtabula No. 2002–A–0001, 2003–Ohio–2815, ¶ 23. However, even if Richardson had

renewed his Crim. R. 29 motion, we conclude that his argument that his convictions for

violations of R.C. 921.24(B) and R.C. 921.06(A)(1) were based upon insufficient evidence

lacks merit.

{¶ 17} Crim. R. 29(A) states that a court shall order an entry of judgment of

acquittal if the evidence is insufficient to sustain a conviction for the charged

offense. “Reviewing the denial of a Crim. R. 29 motion therefore requires an appellate

court to use the same standard as is used to review a sufficiency of the evidence

claim.” State v. Witcher, 6th Dist. Lucas No. L–06–1039, 2007–Ohio–3960. “In

reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is whether, after reviewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.’ ”

(Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA 99, 2008–Ohio–4636, ¶

12.

{¶ 18} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight,

, 2005–Ohio–

6046,

. “A claim that a jury verdict is against the manifest weight of -8-

the evidence involves a different test. ‘The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way and

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

a new trial ordered. The discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.’ ” (Citations omitted.) Id. at ¶ 71.

{¶ 19} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass,

,

(1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997).

{¶ 20} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97–CA–03,

(Oct. 24, 1997).

{¶ 21} With respect to Count II, Richardson was found guilty of acting as a

commercial applicator without being licensed to do so, in violation of R.C. 921.24(B),

which provides: -9-

No person shall do any of the following:

***

(B) Act as a commercial applicator without being licensed to do so;

***.

{¶ 22} “ ‘In a criminal charge the exact date and time are immaterial unless in the

nature of the offense exactness of time is essential. It is sufficient to prove the

alleged offense at or about the time charged.’ ” State v. S.S., 10th Dist. Franklin No.

13AP–1060,

,

, ¶ 39 (Dec. 4, 2014), quoting Tesca v.

State,

,

(1923), paragraph one of the syllabus. “Where

the precise date and time of a violation of the statute are not essential elements of the

crime, an indictment need not allege a specific date of the offense.”

citing State v.

Sellards,

, 171–72,

(1985). “ ‘The General Assembly,

in declaring what shall be sufficient in an indictment, provided, among other things, that it

shall be sufficient if it can be understood that the offense was committed at some time

prior to the time of the filing of the indictment.’ ”

quoting

, citing R.C. 2941.03(E). “Proof of the offense on or about the alleged date is sufficient

to support a conviction even where evidence as to the exact date of the offense is in

conflict.”

citing State v. Cochran,

,

, ¶ 82 (10th Dist.),

citing State v. Dingus,

,

(4th Dist. 1970).

“The exact date is not essential to the validity of the conviction and the failure to prove

that is of no consequence.”

citing

. “The state's only responsibility is

to present proof that the offenses alleged in the indictment occurred reasonably within the

time frame alleged.”

citing

;

; State v. -10-

Barnhart, 7th Dist. Jefferson No. 09JE15,

.

{¶ 23} As previously noted, the parties stipulated at trial that Richardson did not

have a commercial applicator’s license during the relevant time period in this case from

September 3, 2012, and lasting until the termination of Richardson’s employment on

December 12, 2012. Here, the criminal complaint charging Richardson in Count II stated

that the violation of R.C. 921.24(B) occurred “on or about September 3, 2012.” At trial,

Tina Pritchett, a former client of Stop One Pest Control, testified to the events underlying

Count II. While Pritchett did not testify to the exact date of the offense, she did testify

that she contacted Stop One in September of 2012 in order to address a bedbug problem

in her residence. Pritchett testified that shortly after she contacted Stop One, Richardson

came to her home on 2112 East Fourth Street in Dayton, Ohio, and made one application

of pesticide. Significantly, Richardson admitted during cross-examination that he arrived

at Pritchett’s house on September 3, 2012, and applied a pesticide treatment for bedbugs

on that date. Given these facts, the jury could readily find that the offense occurred

reasonably within the time frame alleged in the complaint, and Richardson's argument is,

therefore, without merit.

{¶ 24} Richardson further asserts his motion for acquittal should have been

granted because the State failed to establish venue in the City of Dayton for Counts III

and IV which occurred on December 3, 2012, at the residence of Darrell Byrd located at

5294 Torch Lane in Dayton, Ohio.

{¶ 25} Although venue is not a material element of a charged offense, the

prosecution must nevertheless prove it. State v. Draggo,

,

(1981). However, venue need not be proved in express terms, so long as -11-

it is established by all the facts and circumstances in the case. State v. Gribble,

,

(1970), paragraph two of the syllabus. Venue is proper in the

county where the offense or any element of the offense was committed. R.C. 2901.12(A).

Trial courts have broad discretion to determine the facts that would establish venue. State

v. Jackson,

,

,

.

{¶ 26} In the instant case, Byrd testified that his house and the property on which

it sits was located inside the City of Dayton. Byrd testified that he had lived at 5294 Torch

Lane for approximately eighteen years. Byrd further testified that his property had been

annexed by the City of Dayton before he moved to that address. Byrd’s testimony

regarding the location of his house was uncontroverted. Richardson fails to cite any

support for his argument that the State was required to produce materials documenting

the annexation in order to establish that venue was proper regarding Counts III and IV in

the instant case. Based on the foregoing, sufficient direct and circumstantial existed to

support the element of venue beyond a reasonable doubt.

{¶ 27} Lastly, Richardson argues that the evidence was insufficient to prove that

he applied pesticides as defined by R.C. 921.01, which states in pertinent part:

(JJ) “Pesticide” means any substance or mixture of substances intended for

either of the following:

(1) Preventing, destroying, repelling, or mitigating any pest;

(2) Use as a plant regulator, defoliant, or desiccant.

“Pesticide” includes a pest monitoring system designated by rule.

{¶ 28} Specifically, Richardson asserts that the State “failed to present any

evidence to show that substances or chemicals used by Defendant were prohibited or -12-

contained any active ingredient as defined in O.R.C. 921.01 Pesticide definitions.”

{¶ 29} Richardson’s argument is undermined by his own testimony at trial. During

cross-examination, the following exchange occurred between Richardson and the State

regarding the pesticides he applied at Byrd’s residence:

The State: Pesticides? Do you remember exactly what pesticides you

applied [at Byrd’s residence]?

Richardson: Sure, I remember.

Q: Which ones?

A: The chemicals that [Fields] had given me to use.

Q: Okay, and what were they?

A: Do you want the names?

Q: Yes.

A: One, one chemical is called suspend.

Q: And what’s that used for?

A: It’s a knockdown chemical that you use that would kill on contact.

Q: Okay.

A: And the other I mentioned to [defense counsel] was gentrol, which is a

growth regulator –

Q: Okay, and you started applying –

A: Which controls the growth.

Q: Okay and you started applying those pesticides at, on the same visit

once you realized what the job needed, is that correct?

A: On the same visit? -13-

***

Q: Yes.

{¶ 30} The following exchange occurred between Richardson and the State

regarding the pesticides he applied at Pritchett’s residence:

The State: Do you remember going out to Tina Pritchett’s house on

September third?

Richardson: Yes, she’s a very nice lady.

Q: All right and when you were out at that house you did, was it a bedbug

treatment?

A: Yes.

Q: How many times did you go out to Miss Pritchett’s house?

A: I think it was twice.

Q: And do you remember what the treatment was that you did?

A: It was a bedbug treatment, I mean as far as the application –

Q: Yes.

A: To administer the chemical in what areas, is this what you asking me?

Q: Well, my question is what did you do at Miss Pritchett’s house? What

pesticides did you apply?

A: Okay, the same pesticide, suspend, okay. That’s a knockdown.

Gentrol is a growth regulator. You mix those two together in

measurements and the measurements that you would see if you looked at

the actual receipt is the same thing that was written up by [Fields] who

showed me exactly how it’s done so we can make sure that our records are -14-

in proper order so when the inspectors come -- ***.

{¶ 31} We also note that Fields testified that when he was called out to “retreat”

Pritchett’s house, he observed residue from where Richardson had previously applied

“dry dust” or “delta dust” which is a pesticide commonly used to treat bedbug infestations.

Therefore, viewed in a light most favorable to the State, sufficient evidence was presented

that Richardson applied “pesticides” to exterminate bedbugs as the term is defined

pursuant to R.C. 921.01(JJ).

{¶ 32} Thus, having reviewed the record, we find no merit in Richardson's manifest

weight challenge. It is well settled that evaluating witness credibility is primarily for the

trier of fact. State v. Benton, 2d Dist. Miami No. 2010–CA–27, 2012–Ohio–4080, ¶ 7. A

trier of fact does not lose its way and create a manifest miscarriage of justice if its

resolution of conflicting testimony is reasonable.

Here, the jury quite reasonably could

have credited the State’s evidence which established that Richardson was guilty of the

offenses for which he was convicted. Accordingly, the trial court did not lose its way and

create a manifest miscarriage of justice in reaching guilty verdicts for one count of not

having a commercial applicator’s license (with a prior conviction), in violation of R.C.

921.06(A)(1), and two counts of acting as a commercial applicator without being licensed

to do so, in violation of R.C. 921.24(B).

{¶ 33} Richardson’s first and fourth assignments of error are overruled.

{¶ 34} Richardson’s second assignment of error is as follows:

{¶ 35} “THE TRIAL COURT ERRED BY OVERRULING OBJECTIONS AND

ALLOWING TESTIMONY REGARDING BANK DOCUMENTS.”

{¶ 36} In his second assignment, Richardson argues that the trial court erred when -15-

it allowed the State, over objection, to introduce bank statements for Stop One Pest

Control because they constitute impermissible hearsay. Specifically, Richardson

asserts that the State failed to properly authenticate the bank documents pursuant to

Evid.R. 803(6) before the trial court received them into evidence.

{¶ 37} The admission or exclusion of evidence rests in the sound discretion of the

trial court. State v. Sage,

,

(1987). An abuse of

discretion implies that the judge's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 38} Evid.R. 803(6) provides as follows:

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness: * * * 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 * * * unless the source of information or

the method or circumstances of preparation indicate lack of trustworthiness.

***

{¶ 39} In order to lay a proper foundation for the admission of a business record,

the proponent of the document must demonstrate that: (1) the record was prepared by an

employee of the business who had a duty to report the information; (2) the person -16-

providing the information contained in the record had personal knowledge of the event or

transaction reported; (3) the record was prepared at or near the time of the event or

transaction; and (4) it was a regular practice or custom of the business in question to

prepare and retain the type of record. State v. Hall, 2d Dist. Montgomery No. 19074,

, ¶ 34. “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, L.L.C. v. Williams, 2d Dist. Montgomery No.

25427,

. The phrase “qualified witness” should be broadly

interpreted. Hall, 2d Dist. Montgomery No. 19074,

, ¶ 35.

{¶ 40} The State offered copies of bank records for Stop One Pest Control marked

as “State’s Exhibit 6.” Attached to the bank records was a letter typed on J.P.

Morgan/Chase Bank letterhead which stated as follows:

I hereby certify based on my knowledge that these enclosed records

are a true and correct copy of the original documents maintained by JP

Morgan Chase Bank, N.A. in the ordinary course of business, and the

original records were created at or around the time of the actual

transactions.

{¶ 41} The certification letter was addressed to Agent John Eagon from the Ohio

Department of Agriculture and signed by Jeanette Chiles, a Document Review Specialist

employed by JP Morgan/Chase Bank. At trial, Eagon testified that he requested the

bank records of Stop One pursuant to a subpoena duces tecum. The subpoena drafted

by Eagon and addressed to Chase Bank was also introduced into evidence. Eagon

testified that he did not personally observe Chiles sign the records, and he admitted that -17-

he would not know if the certification letter was actually from Chase Bank. Based on the

information in the certification signed by Chiles, Eagon testified that the bank records

were true and correct copies and the documents were maintained by the bank in the

ordinary course of business. Based on Eagon’s testimony and the certified letter from

Chase Bank, the trial court held that proper foundation had been laid and therefore found

that the bank documents had been properly authenticated.

{¶ 42} “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,

.

{¶ 43} In State v. Hood,

, 2012–Ohio–6208,

,

the cellular telephone records from the defendant and his co-conspirators were admitted

into evidence to place the defendant in the vicinity of the crime and to show contact with

his co-conspirators. Although detectives testified they subpoenaed the cellular

telephone records from the cellular-phone companies, the subpoenas were not in the

record. Defense counsel objected to the use of these records “claiming that the records

lacked verification or certification of their authenticity.”

. At trial, a detective

was called by the State to verify the records were obtained through subpoena and to

testify regarding his experience interpreting cell-phone records. -18-

{¶ 44} In finding the admission of the cell-phone records a constitutional error,

the Hood court reasoned:

Here, there was simply no foundation laid by a custodian of the

record or by any other qualified witness. Detective Veverka was not a

custodian of the records. He did not prepare or keep the phone records as

part of a regularly conducted business activity. Nor was he an “other

qualified witness” under the rule. A “qualified witness” for this purpose

would be 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.” 5 McLaughlin, Weinstein's Federal

Evidence Section 803.08[8][a] (2d Ed. 2009); United States v. Lauersen,

(2d Cir. 2003). Tellingly, in the midst of discussions

regarding the lack of authentication of the records, the trial judge

remarked, “My gut reaction is to subpoena Verizon.” That did not happen.

***

Thus, the cell-phone records in this case were not authenticated as

business records, and that fact affects their status in regard to the

Confrontation Clause. If the records had been authenticated, we could be

sure that they were not testimonial, that is, that they were not prepared for

use at trial. Without knowing that they were prepared in the ordinary

course of a business, among the other requirements of Evid.R. 803(6), we

cannot determine that they are nontestimonial. We thus find that the

admission of the records in this case was constitutional error. -19-

Id. at ¶ 40-42.

{¶ 45} In the instant case, Stop One’s bank records from Chase Bank were

delivered to Eagon pursuant to a subpoena sent from the Ohio Department of Agriculture,

and the subpoena is part of the record. Attached to the bank records is a certified letter

from Chiles who identified herself as a document review specialist employed by Chase

Bank. Such a certification from the custodian was lacking in Hood. Using Hood as a

guide, we conclude that the subpoena issued by Eagon in his official capacity as an agent

of the DOA and the certified letter from Chiles provide the bank records with sufficient

indicia of reliability that the documents are in fact what they purport to be. We also note

that similar to cellular telephone records, bank records are business records that are not

prepared for litigation and are nontestimonial in nature. Based upon the evidence

adduced at trial, we find that the State presented sufficient evidence to authenticate Stop

One’s bank records from Chase Bank. Accordingly, the trial court did not err when it

admitted the properly authenticated bank documents into evidence under the business

records exception to the hearsay rule.

{¶ 46} Richardson’s second assignment of error is overruled.

{¶ 47} Richardson’s third assignment of error is as follows:

{¶ 48} “THE TRIAL COURT ERRED BY NOT ALLOWING THE DEFENSE TO

IMPEACH A WITNESS USING PRIOR INCONSISTENT STATEMENTS.”

{¶ 49} In his third assignment, Richardson contends that the trial court erred when

it sustained an objection from the State when defense counsel attempted to impeach

Fields’ testimony with “Defense Exhibit H.” Richardson argues that he should have been

permitted to cross-examine Fields with Def. Ex. H, which was purported to be “evidence -20-

of an agreement with the State [that Fields] would not be charged in exchange for his

testimony against the Defendant.”

{¶ 50} Introduction of prior inconsistent statements is governed by Evid.R.

613(B)(1), which provides as follows:

(B) Extrinsic Evidence of Prior Inconsistent Statement of

Witness. Extrinsic evidence of a prior inconsistent statement by a witness

is admissible if both of the following apply:

(1) If the statement is offered solely for the purpose of impeaching the

witness, the witness is afforded a prior opportunity to explain or deny the

statement and the opposite party is afforded an opportunity to interrogate

the witness on the statement or the interests of justice otherwise require;

(2) The subject matter of the statement is one of the following:

(a) A fact that is of consequence to the determination of the action other

than the credibility of a witness;

(b) A fact that may be shown by extrinsic evidence under Evid.R.

608(A), 609, 616(A), or 616(B);

(c) A fact that may be shown by extrinsic evidence under the common

law of impeachment if not in conflict with the Rules of Evidence.

{¶ 51} “ ‘When extrinsic evidence of a prior inconsistent statement * * * is offered

into evidence pursuant to Evid.R. 613(B), a foundation must be established through direct

or cross-examination in which: (1) the witness is presented with the former statement; (2)

the witness is asked whether he made the statement; (3) the witness is given an

opportunity to admit, deny or explain the statement; and (4) the opposing party is given -21-

an opportunity to interrogate the witness on the inconsistent statement.’ ” State v.

Robinson, 2d Dist. Montgomery No. 26441,

, ¶ 27, citing State v.

Mack,

, 514–515,

(1995). If the witness admits making

the conflicting statement, then there is no need for extrinsic evidence. If the witness

denies making the statement, extrinsic evidence may be admitted, provided the opposing

party has an opportunity to query the witness about the inconsistency, and provided the

“evidence does not relate to a collateral matter[.]” Id. at ¶ 28, citing State v. Pierce, 2011-

Ohio-4873,

, ¶ 82 (2d Dist.).

{¶ 52} During Richardson’s cross-examination of Fields, the following exchange

occurred regarding the attempted introduction of the alleged prior inconsistent statement:

Richardson: I’m going to hand you what’s been marked as Defendant’s

Exhibit “H.”

Tell me if you recognize this document. Do you recognize this document?

Fields: No.

Q: Is there a signatue [sic] on that document?

A: Yeah.

Q: Whose is it?

A: Looks like mine but I don’t remember this document.

Q: Can you read that document to us?

The State: I’m going to object, Your Honor, I don’t –

The Court: Yeah –

The State: There’s no foundation at this point.

The Court: Until it’s received into evidence, sustained. -22-

Richardson: Doesn’t that document indicate that Mister Richardson is

working for you?

The State: Objection, same question.

The Court: Sustained.

Richardson: Wasn’t Mister Richardson working for you from ’12, 2012 until

April 20, 2013?

Fields: No, I don’t know, no, no.

Q: So you’re telling us that that document is forged?

The State: Objection, Your Honor.

The Court: Overruled.

Fields: I remember closing the business down at [12/12/12] and it says

[4/20/13] here. That’s not correct. It can’t be.

Richardson: So you don’t recall –

A: No.

Q: Signing that document at all?

A: No, sorry sir.2

{¶ 53} Under the circumstances presented, Richardson was permitted to impeach

Fields with any prior inconsistent statements contained in Def. Ex. “H.” Richardson was

also permitted a reasonable opportunity to refresh Fields’ recollection of the document.

However, once Fields unequivocally testified that he did not recognize Def. Ex. “H,”

2Def. Ex. “H,” which was not dated, states as follows, “Step 1 Pest Control – Darrell Richardson has worked for us since September 1 of this year 2012 – 4-20-13 – Thank You[.]” [Signed] Homer Fields. -23-

Richardson was not permitted under Evid.R. 613(B) to ask him to read it out loud in front

of the jury. Simply put, defense counsel failed to lay the proper foundation for

introduction of Def. Ex. “H.” Where impeachment is used as a “subterfuge” to get

evidence before the jury which is not otherwise admissible, it is improper. State v.

Johnson,

,

(2d Dist.).

{¶ 54} Richardson did not present any other evidence in order to establish that

Fields authored and signed the statement contained in Def. Ex. “H.” Because the proper

foundation was not laid for introduction of the document into evidence, the trial court

correctly sustained the State’s objection to Def. Ex. “H” being used to impeach Fields’

testimony.

{¶ 55} Richardson’s third assignment of error is overruled.

{¶ 56} Richardson’s fifth and final assignment of error is as follows:

{¶ 57} “[THE] TRIAL COURT ERRED IN IDENTIFYING THE DEFENDANT

AFTER JURY WAS UNABLE TO DO SO DURING DELIBERATION IN LIEU OF GIVING

AN ALLEN CHARGE.”

{¶ 58} In his final assignment, Richardson contends that the trial court erred when

it answered a question from the jury during deliberations regarding Counts II and IV.

Specifically, the jury made the following inquiry of the trial court:

On Count II and IV was the charge against Darrell [Richardson] or Stop One

Pest Control having a commercial applicator license?

Tr. at 683. Over an objection from defense counsel, the trial court sent a message to the

jury, wherein it responded simply that “Darrell Richardson is the only defendant in this

case.” -24-

{¶ 59} “ ‘Where, during the course of its deliberations, a jury requests further

instruction, or clarification of instructions previously given, a trial court has discretion to

determine its response to that request.’ ” State v. Tobin, 2d Dist. Greene No. 2005 CA

150, 2007–Ohio–1345, ¶ 87, quoting State v. Carter,

,

(1995), paragraph one of the syllabus. “ ‘A reversal of a conviction based upon a trial

court's response to such a request requires a showing that the trial court abused its

discretion.’ ”

quoting

.

{¶ 60} An abuse of discretion “ ‘implies that the court's attitude is unreasonable,

arbitrary or unconscionable.’ ” (Citations omitted.) Blakemore v. Blakemore,

,

(1983). “[A]n abuse of discretion most commonly arises from

a decision that was unreasonable.” Wilson v. Lee,

, 2007–Ohio–

4542,

(2d Dist.), citing Schafer v. RMS Realty,

,

(2d Dist. 2000). (Other citation omitted.) “Decisions are

unreasonable if they lack a sound reasoning process.”

{¶ 61} Upon review, we conclude that the trial court did not abuse its discretion

when it answered the jury’s question in the instant case. The trial court did not mislead

the jury by reminding them that Richardson was the only defendant in the case. In its

instructions, the trial court informed the jury that “the defendant is charged with four

counts.” It is apparent that the question asked by the jury established that they were

merely confused regarding who the defendant was with respect to Counts II and IV. In

its brief response, the trial court simply clarified its earlier jury instructions regarding the

identity of the defendant. In doing so, the trial court cleared up any confusion which

might have existed by correctly identifying the defendant in Counts II and IV as -25-

Richardson. In our view, the trial court response to the jury question was for clarification

and did not prejudice Richardson in any way.

{¶ 62} Richardson’s fifth and final assignment of error is overruled.

{¶ 63} All of Richardson’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Matthew Kortjohn C. Ralph Wilcoxson, II Hon. Deirdre E. Logan