[Cite as State v. Hemmelgarn,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-7 : v. : Trial Court Case No. 2018-CR-113 : ERIC J. HEMMELGARN : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

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OPINION

Rendered on the 24th day of May, 2019.

...........

DEBORAH S. QUIGLEY, Atty. Reg. No. 0055455, Darke County Prosecutor’s Office, Appellate Division, 504 S. Broadway Street, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee

PAUL E. WAGNER, Atty. Reg. No. 0067647, 507 S. Broadway Street, Greenville, Ohio 45331 Attorney for Defendant-Appellant

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

HALL, J. -2-

{¶ 1} Eric J. Hemmelgarn appeals from his conviction following a bench trial on

charges of gross sexual imposition and disseminating matter harmful to juveniles.

{¶ 2} Hemmelgarn advances six assignments of error. The first two challenge the

legal sufficiency and manifest weight of the evidence to sustain his convictions. Third, he

contends the trial court improperly admitted into evidence his responses to hypothetical

scenarios relating to drug use. Fourth, he claims the trial court was prejudiced by its

admission of irrelevant evidence. Fifth, he asserts that a police officer’s testimony about

the recovery and analysis of cell-phone data improperly was admitted as lay testimony.

Sixth, he alleges that cumulative error deprived him of a fair trial.

{¶ 3} The record reflects that Hemmelgarn was charged with the offenses set forth

above for reaching inside the pants of his 12-year-old daughter “Susan” and rubbing her

vagina while showing her a pornographic video on his cell phone. 1 At trial, Susan

engaged in the following discussion with the prosecutor about the incident, which

occurred while she was home with her father and two younger siblings, who were asleep

or in bed:

Q. Okay. [Susan], back in the end of August, 2017 until the early part

of September, 2017, was there a time when something happened with your

dad that made you very upset?

A. Yes.

Q. And what happened?

A. I was sitting on the couch and—

Q. This is in your living room at your house?

1 We will use the fictitious name “Susan” to identify the victim and preserve her privacy. -3-

A. Yes.

Q. About what time?

A. It would have been around 9:00, 10:00.

Q. Okay. Are we talking morning or night?

A. Night.

***

Q. All right. You’re sitting on the couch. Is your dad home?

A. Yes.

Q. And where is he?

A. He was sitting on the couch.

Q. And what was your dad doing?

A. He was trying to force his hands down my pants while showing

me a video.

Q. Okay. Where was the video?

A. On his phone.

Q. Okay. Tell me about the video.

A. It was about a father/daughter and she was in the bathroom

wearing a towel and he was going to—looks like he was going to bed and

they ended up having sex.

Q. Okay. Was there a title there that you saw?

A. Yes.

Q. And what was the title?

A. “Dad F’s little girl.” -4-

Q. Okay. You said that she’s in a towel. Can you tell me what did you

see?

A. She was in a towel and the father ended up taking the towel off

and she was naked, and he stuck his thing inside of her.

Q. Okay. When you say he stuck his thing inside of her, what do you

mean?

A. I don’t know how to put it. She was bent over the toilet and he was

like behind her and that’s how he stuck it in.

Q. Okay. How long are you watching this video?

A. I don’t remember.

Q. And what is your dad doing?

A. Trying to get his hand down my pants.

Q. Tell me what are you wearing?

A. I was wearing sweat pants, like a grayish colored sweat pants with

gold rings around the ankles, and that’s all I can remember. I don’t

remember the shirt I was wearing.

Q. Did you have underwear on?

A. Yes.

Q. Okay. And you said your dad was trying to put his hand down your

pants, your pants or your underwear?

A. My underwear.

Q. And what part is he touching?

A. The front part. -5-

Q. Okay. What do you mean by “front part”?

A. My vagina.

Q. And what is he doing with his hand?

A. He’s trying to force it down my pants and there was a moment of

weakness, like, and he ended up getting able to put it down and he was,

like, rubbing.

Q. Okay. He was rubbing?

A. Yes.

Q. What was he rubbing?

A. My vagina.

(Trial Tr. at 14-18.)

{¶ 4} Susan testified that the incident stopped when she got up to help a younger

sibling who had gotten out of bed. After helping the child, Susan left the house and ran

next door, where she told some of her friends what had happened. (Id. at 18-19.) While

she was there, Hemmelgarn came over. He stated that she was “crazy” and “just mad” at

him. Susan returned home with Hemmelgarn and went into her bedroom and locked the

door. (Id. at 19.)

{¶ 5} On cross examination, Susan testified that the incident with Hemmelgarn

occurred toward the end of August before school started for the year. (Id. at 22, 24-25.)

On re-direct examination, she testified that about one week passed after the incident

before she talked to police, which occurred on September 12, 2017. (Id. at 27, 45.) She

agreed that this meant the incident possibly occurred in September. (Id. at 27.) On re-

cross examination, however, Susan testified again that the incident occurred before -6-

school started for the year. (Id. at 28.) Then on further direct examination, she stated that

she was “not sure of the date” and that the incident could have occurred about one week

before she talked to the police. (Id.) On further re-cross examination, Susan remembered

that it happened before school started.2 (Id. at 29.)

{¶ 6} The next witness was Greenville police officer Jason Marion. He testified that

he spoke with Susan about the incident on September 12, 2017. He then interviewed

Hemmelgarn at the police department on September 13, 2017 and again on September

14, 2017. (Id. at 45-46.) After the first interview, Marion and another officer followed

Hemmelgarn back to his house and obtained his cell phone. With Hemmelgarn’s consent,

Marion copied the phone’s hard drive. (Id. at 46-47.) He then extracted data from the

phone and generated a report dealing primarily with the phone’s “Web and browser

history,” most of which had been deleted on September 13, 2017 before police obtained

the phone. (Id. at 48, 51-53.)

{¶ 7} During both of Hemmelgarn’s interviews, he denied Susan’s allegations. (Id.

at 54.) In the second interview, however, he “started to indicate that perhaps he was

watching pornography on his phone and the children walked by and accidentally saw it.”

He also “started to get into the fact that he was addicted to crack cocaine and that

because of his addiction to crack cocaine that that caused him to watch pornography and

he kind of led into that when he smoked crack cocaine sometimes he didn’t remember

doing specific things like looking at pornography.” (Id. at 54-55.) At one point, Marion

asked Hemmelgarn “if it was possible that if he was so high on crack cocaine that he

2 The significance of the timing is that police found a pornographic video on Hemmelgarn’s cell phone that had been accessed in early September 2017. -7-

could have touched [Susan] and not remembered and he said it could have been a

possibility.” (Id. at 56.)

{¶ 8} Following this portion of Marion’s testimony, the State played excerpts of

Hemmelgarn’s second interview. The State explained that it was playing the excerpts

rather than another recording of the whole interview to keep out portions that contained

inadmissible hearsay. (Id. at 57-58.) Defense counsel’s only objection was that the State

shortened version “took out much more than what was just inadmissible.”(Id. at 58.) The

trial court overruled the objection, noting that it would allow Hemmelgarn to use the

recording of the entire interview and play any additional portions that he believed were

necessary. (Id. at 58-61.)

{¶ 9} After the interview excerpts were played, Marion testified about a report on

the cell phone data extraction. When asked whether there was “anything in the report

within the time frame between August and September 12th with regard to fathers and

daughters,” Marion responded affirmatively. (Id. at 64.) He added that “[t]here were

multiple dates on inferences like that.” (Id.)

{¶ 10} On cross examination, Marion acknowledged that the data-extraction report

showed no internet searches on Hemmelgarn’s phone during the month of August 2017.

(Id. at 69.) He noted that a video could have been saved on the phone without a web

search, but he did not find any videos of saved “child porn.” (Id. at 70.) Marion then

acknowledged that when he spoke with Susan, she claimed Hemmelgarn had showed

her “child porn.” (Id. at 71.) In particular, Susan told Marion “that the child that she saw in

the video was about her age.” (Id. at 72.) When Marion searched Hemmelgarn’s cell

phone, he found browser searches from September 2017 that were “close” to what Susan -8-

had described. (Id.) On re-direct examination, Marion testified about Hemmelgarn

admitting crack cocaine took over him. Marion also agreed that when Hemmelgarn was

asked about touching his daughter, he denied having any recollection of doing so. (Id. at

84.) Finally, Marion testified that he became involved in the case after Hemmelgarn’s

neighbor contacted the police department on September 12, 2017. (Id. at 85.) According

to Marion, the neighbor reported hearing allegations involving Susan and Hemmelgarn

for about three days before she contacted the police. (Id. at 86, 88.) Following Marion’s

testimony, the State rested.

{¶ 11} Kent Warner then testified as a defense witness. Warner identified himself

as a relative of Hemmelgarn and Susan. He explained that Hemmelgarn’s “mother is [his]

wife’s step sister.” (Id. at 93.) He considered Hemmelgarn his nephew and Susan his

great niece. (Id.) At the time of trial, Susan was living with Warner and his wife as a result

of Darke County Children Services placing the child there due to the allegations against

Hemmelgarn. (Id. at 93-95.) Warner testified that about a week before police became

involved in the case, he asked Susan whether Hemmelgarn had been doing “bad things.”

According to Warner, Susan told him she knew what he was talking about and denied

that anything had happened. (Id. at 99-100.) After the police became involved, Susan

talked to Warner again and allegedly told him, “Daddy did do it.” (Id. at 102.) Warner

testified, however, that the only specific conduct she acknowledged was Hemmelgarn

putting his hand down the back of her pants and squeezing her “butt.” (Id. at 102.) Warner

proceeded to testify that “at times” it is difficult to tell when Susan is telling the truth. (Id.

at 103.) On cross examination, however, Warner stated that lying was not a “consistent

problem” for Susan. (Id. at 109.) Following Warner’s testimony, defense counsel rested. -9-

{¶ 12} The trial court ruled from the bench the following day and found

Hemmelgarn guilty of gross sexual imposition, a felony of the third degree, and

disseminating matter harmful to juveniles, a felony of the fourth degree. (Sentencing Tr.

at 3.) For the gross sexual imposition, the trial court imposed a 12-month prison sentence

with five years of mandatory post-release control and sex-offender registration

requirements. It imposed five years of community control for disseminating matter harmful

to juveniles. (Id. at 10-12.) The trial court memorialized the conviction and sentence in an

August 8, 2018 judgment entry. (Doc. #18.) This appeal followed.

{¶ 13} In his first assignment of error, Hemmelgarn challenges the legal sufficiency

of the State’s evidence to sustain his convictions. In support, he cites Warner’s testimony

about Susan denying that anything happened and then claiming he squeezed her butt.

He also contends Susan falsely claimed he had her watch “child porn” when no legally-

defined child porn was found on his phone. He further alleges that inconsistent testimony

was presented as to precisely when the offenses occurred and whether three days or one

week elapsed between the offenses and police being contacted. Hemmelgarn contends

the only link to a pornographic video on his cell phone was from September 8, 2017, and

police were notified on September 12, 2017, which was not one week later. He argues

that this contradicted Susan’s testimony that one week elapsed between the incident and

police being notified. Hemmelgarn also argues that no one corroborated her allegations,

which he repeatedly denied. To the extent that he eventually “hedged” and agreed it was

possible the incident could have occurred without him remembering it if he was high on

crack cocaine, Hemmelgarn argues that this was a hypothetical situation, not an

admission. For all of the foregoing reasons, he contends the evidence was legally -10-

insufficient to sustain either of his convictions.

{¶ 14} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn,

,

(2d

Dist. 2000). “An appellate court’s function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing 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.” State v.

Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 15} With the foregoing standards in mind, we conclude that Hemmelgarn’s

convictions were supported by legally sufficient evidence. Susan’s testimony, alone, if

believed, was legally sufficient to sustain his convictions for gross sexual imposition and

disseminating matter harmful to juveniles. The portion of her testimony quoted above

establishes the essential elements of both offenses. Hemmelgarn’s various arguments

challenge Susan’s credibility and the believability of her trial testimony. But witness

credibility is not a proper matter for review when assessing legal sufficiency of the

evidence. State v. Sibole, 2d Dist. Clark No. 2017-CA-68,

, ¶ 23.

Accordingly, the first assignment of error is overruled.

{¶ 16} In his second assignment of error, Hemmelgarn asserts that his convictions

were against the manifest weight of the evidence. He advances a number of arguments

in support. He suggests that Susan had a motive to lie because she testified that she -11-

disliked him being gone for hours at a time without explanation or spending time with his

friends. Hemmelgarn theorizes that Susan may have wanted to live with her great aunt

and uncle rather than him and that she made up her allegations to get what she wanted.

He also cites Kent Warner’s testimony that it sometimes is hard to tell when Susan is

lying. Hemmelgarn reasons that the trial court could not be expected to determine

whether Susan’s testimony was truthful if Warner, a relative, had a hard time ascertaining

her veracity.

{¶ 17} Hemmelgarn also notes that the case began with a report from a neighbor

that he had raped Susan, which was not true. He suggests that Susan was the source of

this untruthful allegation and, therefore, that her trial testimony lacked credibility. As for

the pornographic video he allegedly showed Susan, Hemmelgarn contends the State

provided insufficient details to support a finding that he forced her to watch such a video.

He suggests that Susan may have watched a pornographic video herself or with friends,

or she may have lied about the entire incident. Hemmelgarn further argues that Susan

may have used his phone and found the video herself.

{¶ 18} When a conviction is challenged on appeal as being against the weight of

the evidence, an 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). A

judgment should be reversed as being against the manifest weight of the evidence “only

in the exceptional case in which the evidence weighs heavily against the conviction.” -12-

State v. Martin,

,

(1st Dist. 1983).

{¶ 19} Here Hemmelgarn’s convictions were not against the weight of the

evidence. With regard to Susan’s credibility, veracity, and a possible motive to lie, these

matters were primarily for the trier of fact to resolve. Although we are entitled to assess

witness credibility in a manifest-weight review, we extend substantial deference to the

fact-finder’s determinations of credibility and which testimony to believe. State v.

Stanaford, 2d Dist. Montgomery No. 27940,

. We are somewhat

less deferential when deciding which of multiple competing inferences suggested by the

evidence should be preferred. State v. Hawkins, 2d Dist. Montgomery No. 27019, 2018-

Ohio-867, ¶ 57.

{¶ 20} With regard to Susan’s credibility, the trial court reasonably could have

believed her testimony about Hemmelgarn rubbing her vagina and showing her a

pornographic video. Although Susan described the video as “child porn” (Trial Tr. at 70),

the trial court was not required to conclude that she was speaking in a legal sense. Rather,

the trial court reasonably concluded that she meant the video depicted what appeared to

be a father and his young-looking daughter. (Id. at 70-71.) The fact that no legally-defined

“child porn” was found on Hemmelgarn’s cell phone was a matter for the trial court to

assess in determining Susan’s credibility. Moreover, although the record contains

conflicting evidence about whether the offenses occurred three days or one week before

police were notified, Susan acknowledged that she was “not sure of the date.” (Id. at 28.)

On appeal, Hemmelgarn admits that a link to a pornographic video on his cell phone was

from September 8, 2017, and police were notified on September 12, 2017, which was

four days later. In our view, the timing issue was again a matter for the trial court to resolve -13-

when assessing witness credibility.

{¶ 21} As for Hemmelgarn’s argument about the case beginning with an inaccurate

report from a neighbor that he had raped Susan, no evidence established that Susan was

the source of that allegation. (Id. at 82.) Susan testified that, after Hemmelgarn touched

her and showed her the video, she ran next door and told several of her friends what had

happened. (Id. at 18.) It appears that the mother of one or more of these friends reported

the incident to police a few days later and, in so doing, may have gotten the specifics

wrong. (Id. at 83, 85.) Finally, with regard to the video, we simply disagree with

Hemmelgarn’s assertion that the State presented “insufficient details” to support a finding

that he forced Susan to watch it. At trial, Susan provided a fairly detailed description of

the video’s contents as well as the circumstances surrounding her viewing of it.

Hemmelgarn’s suggestion that she may have taken his phone and watched the video

herself, or that she may have seen such a video with friends, was a matter for the trial

court to consider when assessing her credibility.

{¶ 22} Based on our review, we do not find that the trial court clearly lost its way

and created a manifest miscarriage of justice when resolving conflicts in the evidence.

This is not an exceptional case in which the evidence weighed heavily against

Hemmelgarn’s convictions. His second assignment of error is overruled.

{¶ 23} In his third assignment of error, Hemmelgarn contends the trial court erred

in admitting into evidence his responses to hypothetical scenarios regarding drug use.

More specifically, he challenges the trial court’s admission of his recorded second

interview at the police department. He claims the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice. He asserts that the “heavily -14-

edited” excerpts played by the prosecutor showed police asking about his drug history,

the effects of his drug use, and whether he might have touched Susan without

remembering while under the influence of drugs. According to Hemmelgarn, the excerpts

played by the prosecutor omitted his “vigorous denials” and attempts by police to get him

to change his story. Hemmelgarn also contends the questions about his drug use and

memory loss were irrelevant because the State presented no evidence that he used or

possessed drugs on the day in question.

{¶ 24} Upon review, we find Hemmelgarn’s arguments to be unpersuasive. Before

the recording was played, Marion testified without objection about what Hemmelgarn said

during the second interview:

Again, he initially denied the allegations. He started to indicate that

perhaps he was watching pornography on his phone and the children

walked by and accidentally saw it. Then he started to get into the fact that

he was addicted to crack cocaine and that because of his addiction to crack

cocaine that that caused him to watch pornography and he kind of led into

that when he smoked crack cocaine sometimes he didn’t remember doing

specific things like looking at pornography. So we talked a lot of that.

(Trial Tr. at 54-55.)

{¶ 25} Marion then added the following regarding his second interview with

Hemmelgarn:

And then when I brought up the fact that he was—he had stated that

when—sometimes when he smokes crack cocaine he doesn’t remember

certain things, I asked him if it was possible that if he was so high on crack -15-

cocaine that he could have touched [Susan] and not remembered and he

said it could have been a possibility.

(Id. at 56.)

{¶ 26} After this portion of Marion’s testimony, the State attempted to play a

recording of the second interview. Defense counsel objected to playing the entire

interview on the basis that it included inadmissible hearsay. (Id. at 57.) The State agreed

that playing the entire recording would be improper. For that reason, it proposed playing

an edited version (State’s Exhibit 4) containing admissible portions of the interview. (Id.

at 58.) The trial court asked whether defense counsel objected to that approach. Defense

counsel responded that the State had omitted “much more than what was just

inadmissible,” thereby removing Hemmelgarn’s statements from their proper context. (Id.)

The trial court explained that it would allow the defense to introduce any additional

portions of the recorded interview deemed necessary to provide context. (Id. at 58-60.)

Based on that ruling, the trial court admitted the State’s excerpts of the interview (State’s

Exhibit 4) but did not allow the State to play the full interview (State’s Exhibit 3.) The trial

court then viewed the excerpts of the interview. (Id. at 62.) On cross examination, defense

counsel questioned Marion about the second interview but did not attempt to introduce

any additional parts of the interview from the full recording. (Id. at 76-81.)

{¶ 27} We see no error in the trial court’s handling of the interview issue. Defense

counsel’s only objection to the State playing the recording containing excerpts of the

interview was that it took Hemmelgarn’s statements out of context. In response to this

objection, the trial court authorized defense counsel to supplement the State’s evidence

with anything else from the full recording that counsel thought necessary. The trial court -16-

acted within its discretion in dealing with the issue this way. As for Hemmelgarn’s specific

appellate arguments about the danger of unfair prejudice and a lack of relevance, he does

not appear to have raised these issues below. In any event, the trial court reasonably

could have found that the discussion about Hemmelgarn’s drug use and memory loss

was relevant and that the probative value of this evidence was not substantially

outweighed by the danger of unfair prejudice for purposes of Evid.R. 403(A). Marion’s

testimony and Hemmelgarn’s statements during the interview supported an inference that

he may have acted under the influence of drugs at the time of the incident in question.

The third assignment of error is overruled.

{¶ 28} In his fourth assignment of error, Hemmelgarn contends the trial court, as

the trier of fact, was prejudiced by the admission of irrelevant evidence of his drug

addiction. His substantive argument is as follows:

Evidence of [Hemmelgarn’s] drug addiction in State’s Exhibit Four

was not relevant to making any fact of consequence to the determination of

the action more or less probable than it would be without the evidence

because the State presented no evidence that [Hemmelgarn] was high or

possessed any drugs on September 8, 2017. Because of this lack of

probative value, [Hemmelgarn’s] addiction and potential memory loss could

only be presented to prove [Hemmelgarn] allegedly acted in conformity with

his addiction. The admission of evidence of drug use and memory loss due

to drug [use] was highly prejudicial and presented [Hemmelgarn] in a highly

damaging light. Given the lack of evidence supporting the State’s argument

and the inflammatory nature of [Hemmelgarn’s] history of addiction, the -17-

prejudice caused by the admission of the evidence contributed to this

conviction.

(Appellant’s brief at 17-18.)

{¶ 29} Hemmelgarn’s argument lacks merit. As a threshold matter, he failed to

raise an Evid.R. 404(B) other-bad-acts objection to the admission of evidence about his

drug use. He never objected at all to Marion’s testimony, quoted above, about his drug

use, and his only objection to the interview recording was that it had been taken out of

context. In any event, the record supports an inference that Hemmelgarn may have acted

under the influence of drugs when touching Susan inappropriately and showing her a

pornographic video. While denying that he touched Susan, Hemmelgarn arguably

acknowledged as much when he admitted to Marion that “it was possible that if he was

so high on crack cocaine that he could have touched [Susan] and not remembered[.]”

(Trial Tr. at 56.) The fourth assignment of error is overruled.

{¶ 30} In his fifth assignment of error, Hemmelgarn contends the trial court erred

in admitting Marion’s testimony regarding “Cellebrite” software as lay-witness testimony.

In particular, he challenges Marion’s testimony about the extraction of data from his cell

phone using a Cellebrite program. Hemmelgarn argues that Marion’s testimony about

using the Cellebrite program to collect data from his cell phone required Marion to be

qualified as an expert witness, which was not done. Therefore, he argues that all

testimony regarding Cellebrite was inadmissible and, without it, that the remaining

evidence did not support his convictions.

{¶ 31} At trial, Marion started to testify about his training in the use of Cellebrite to

examine cell phones and collect data. Defense counsel objected on the grounds that -18-

Marion needed to be qualified as an expert in that area. (Trial Tr. at 31.) The State

responded that it was not presenting Marion as an expert witness. It argued that he could

testify about his use of the Celebrite program as a lay witness. (Id. at 32.) In support, it

cited two cases, State v. Calhoun, 8th Dist. Cuyahoga No. 105442,

, and

State v. Shine,

,

(8th Dist.).

{¶ 32} The trial court held Hemmelgarn’s objection in abeyance while it heard

testimony about Marion’s training with Cellebrite. (Id. at 34.) Marion proceeded to testify

that he underwent two weeks of online training culminating in a 90-minute examination,

which he passed. (Id. at 35.) As a result, he was a “Cellebrite Certified Logical Operator

and Cellebrite Certified Physical Analyst.” (Id. at 36.) Marion explained these

certifications: “Logical operator just means that I’m certified to actually take the evidence

and to extract the information from it. * * * The other side is the analyst side of it where

I’m actually certified to take the extraction and break it down and review it[.]” (Id.) Marion

then testified he and one other officer had “done a lot of phones” since obtaining Cellebrite

certification. (Id.) The process involved taking a phone and cloning the SIM card, copying

the hard drive, and enabling the Cellbrite program to extract available data. The types of

data typically extracted might include browser history as well as “call logs, texting logs,

texting content, chat messages, social media messages, photos, videos, [and]

calendars.” (Id. at 37-43.)

{¶ 33} After Marion explained his Cellbrite qualifications and experience, the trial

court overruled Hemmelgarn’s objection and allowed the officer to testify “as a lay witness

with regard to extracting and analyzing cell phone data.” (Id. at 43.) Marion then testified

about obtaining Hemmelgarn’s cell phone and using the Cellebrite program to extract -19-

data. (Id. at 46-47.) He identified State’s Exhibit 1 as “a copy of the extraction from the

hard drive itself.” (Id. at 47.) He identified State’s Exhibit 2 as a “report generated from

the digital extraction.” (Id. at 48.) According to Marion, the report identified the content

that was able to be extracted from the phone. (Id. at 51.) It also showed what content had

been deleted from the phone prior to its examination. (Id.) The remainder of the report

showed the phone’s web and browser history, most of which had been deleted on

September 13, 2017 before police obtained the phone. (Id. at 51-53.) Marion also testified

that “between August and September 12th” Hemmelgarn’s cell phone showed “multiple

dates on inferences” involving “fathers and daughters.” (Id. at 64-65.)

{¶ 34} After reviewing Marion’s testimony and pertinent case law, we see no error

in the trial court allowing him to give lay-witness testimony about his use of the Cellebrite

program. A lay witness may testify about opinions or inferences that are “(1) rationally

based on the perception of the witness and (2) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in issue.” Evid.R. 701. In the present

case, most of Marion’s testimony did not even involve opinions or inferences. He simply

testified, factually, about extracting data from Hemmelgarn’s phone using the Cellebrite

program and listing that data in a generated report. All witnesses may testify as to facts

within their personal knowledge. Evid.R. 602. To the extent that Marion did offer “opinion”

testimony, he essentially opined that Cellebrite copies data from a phone. He based this

“opinion” on knowledge he acquired through his own use of the program. Marion’s

testimony did not require a specialized understanding of the Cellebrite program, as the

idea that data can be extracted from a cell phone is familiar to most people. Finally, to the

extent that Marion arguably conducted any “analysis” of the data, he merely testified that -20-

a generated report showed content that had been extracted from the phone and content

that had been deleted prior to examination. Again, this factual testimony did not involve

any real opinions requiring specialized knowledge, training, or experience. Therefore, we

agree with the trial court that Marion did not need to be qualified as an expert to testify

about his use of the Cellebrite program in this case.

{¶ 35} Our conclusion is consistent with the two Eighth District cases cited by the

State. In both Calhoun, 8th Dist. Cuyahoga No. 105442,

, and Shine,

,

, the trial courts qualified officers as experts in data

extraction using Cellebrite. On appeal in both cases, the Eighth District found no error

while also noting that the officers could have testified as lay witnesses because expert

testimony was unnecessary. Calhoun at ¶ 32; Shine at ¶ 98-99. Federal courts have

reached the same conclusion under the analogous Federal Rules of Evidence. Most

recently, the Fourth Circuit Court of Appeals addressed the issue as follows in United

States v. Chavez-Lopez, Case No. 18-4183,

, at *2-3 (4th Cir. Apr. 11,

2019):

Chavez-Lopez first contends that Yerry improperly gave expert

opinion testimony. In Chavez-Lopez’s view, Yerry’s testimony about the

extraction of the cellphone data necessarily involved an opinion about the

accuracy of Cellebrite, which he says only an expert could offer. The district

court twice overruled an objection to this effect. We review the district

court’s decision admitting this testimony for abuse of discretion. United

States v. Perkins,

(4th Cir. 2006).

All witnesses may testify to facts within their personal knowledge. But -21-

for opinion testimony, the Federal Rules distinguish between reasoning

familiar in everyday life and reasoning that requires expertise. See United

States v. White,

(6th Cir. 2007). Experts may thus offer

opinions based on “scientific, technical, or other specialized knowledge.”

Fed. R. Evid. 702. Lay witnesses, in contrast, may only offer opinions that

are “rationally based on [their] perception,” helpful to the jury, and not based

on specialized knowledge. Fed. R. Evid. 701. So, a lay witness may testify

that a substance looks like blood but not that certain bruises indicate head

trauma. See Perkins,

.

Under this standard, Yerry did not give expert testimony. First, Yerry

did not offer an opinion. His brief testimony concerned the actions he took

to extract the data—hooking the phones up to a computer, following a few

prompts, and saving data onto an external drive. Yerry’s role as a witness

is, therefore, best characterized as testifying about facts in his personal

knowledge.

Second, to the extent Yerry offered an opinion, it was lay testimony.

Chavez-Lopez contends that Yerry implicitly vouched for Cellebrite’s

accuracy in extracting data. But Yerry offered no assurances about how well

Cellebrite performed. At most, he offered the opinion that Cellebrite copies

data from a cellphone, which he derived from his personal experience using

the software. That testimony requires no more specialized knowledge than

other opinions we have considered lay testimony, such as police officers’

testimony that a substance they observed was methamphetamine, that a -22-

shorthand statement made to them carried a certain meaning, or that an

observed use of force was objectively reasonable. United States v. Hoston,

, 224 (4th Cir. 2018); United States v. Min,

,

324–25 (4th Cir. 2013); Perkins,

. Yerry’s testimony didn’t

require a technical understanding of Cellebrite, and he made no claims

about the program’s effectiveness or reliability. He only testified about

copying data from one drive to another, which is “the product of reasoning

processes familiar to the average person in everyday life.” United States v.

Baraloto,

(4th Cir. 2013) (quoting United States v.

Yanez Sosa,

(5th Cir. 2008) ); see also In re D.H., No.

A140779,

, at *6 (Cal. Ct. App. Feb. 6, 2015) (holding that

an officer gave only lay testimony about the extraction of data using

Cellebrite because “[t]he idea that images may be downloaded from a cell

phone is familiar to the general population”).

For these same reasons, the Second Circuit has held that a police

officer gave lay testimony when he discussed the extraction of data using

Cellebrite. See United States v. Marsh,

(2d Cir.

2014) (holding that an officer gave lay testimony because he “did not purport

to render an opinion based on the application of specialized knowledge to

a particular set of facts” when discussing the extraction of cellphone data

through Cellebrite). Other courts have come to the same conclusion. See

United States v. McLeod,

, 672-75 (9th Cir. 2019); United

States v. Seugasala,

(9th Cir. 2017); D.H., 2015 WL -23-

514336, at *6. But see McLeod, 755 Fed.Appx. at 676-77 (Molloy, J.,

dissenting in part and concurring in part) (contending that a detective who

testified about data extraction using Cellebrite gave expert testimony

without qualification).

{¶ 36} We find the foregoing analysis equally applicable here. For the reasons set

forth above, we see no abuse of discretion in the trial court’s decision to allow Marion to

provide lay-witness testimony about his use of the Cellebrite program. The fifth

assignment of error is overruled.

{¶ 37} In his sixth assignment of error, Hemmelgarn argues that cumulative error

deprived him of his right to a fair trial. He asserts that the alleged errors addressed above,

even if individually harmless, constituted prejudicial error when aggregated.

{¶ 38} It is true that separately harmless errors can violate a defendant’s right to a

fair trial when the errors are aggregated. State v. Madrigal,

,

(2000). To find cumulative error, we first must find multiple errors committed at

trial.

. We then must find a reasonable probability that the outcome below would

have been different but for the combination of separately harmless errors. State v.

Thomas, 2d Dist. Clark No. 2000-CA-43,

, *9 (Sept. 21, 2001). Here,

however, we have not found multiple instances of separately harmless error. That being

so, we have nothing to aggregate. The sixth assignment of error is overruled.

{¶ 39} The judgment of the Darke County Common Pleas Court is affirmed.

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

FROELICH, J. and TUCKER, J., concur. -24-

Copies sent to:

Deborah S. Quigley Paul E. Wagner Hon. Jonathan P. Hein