[Cite as State v. Shropshire,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28659 : v. : Trial Court Case No. 2019-CRB-2453 : BRENDA SHROPSHIRE : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :

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OPINION

Rendered on the 23rd day of December, 2020.

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STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, City of Dayton Prosecuting Attorneys, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

FELICE HARRIS, Atty. Reg. No. 0064911, 6031 East Main Street, #187, Columbus, Ohio 43213 Attorney for Defendant-Appellant

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

TUCKER, P.J. -2-

{¶ 1} Following a bench trial, appellant Brenda Shropshire was convicted of

criminal damaging. Because we find no merit in the asserted assignments of error,

Shropshire’s conviction will be affirmed.

Facts and Procedural History

{¶ 2} William Peterson and Shropshire were involved in a casual romantic

relationship in the several months before May 2019. Peterson lived at an apartment

complex which had security cameras monitoring the complex’s outside areas. On May

20, 2019, Peterson was at home and his automobile was parked in the complex’s parking

lot. Sometime in the very early afternoon, Peterson left his apartment and, upon

reaching his vehicle, he discovered that the tires had been punctured and the side view

mirrors had been damaged.

{¶ 3} Upon this discovery, Peterson went to the complex’s office to determine if the

damage to his vehicle had been captured by a security camera. Peterson had to wait

for the return of the complex manager, Kevin Beamon, who was away from the office

during the lunch hour. This is noteworthy because, as he was leaving for lunch, Beamon

observed two young black women running from the complex’s parking lot toward a vehicle

across the street from the apartment complex. Finding this suspicious, Beamon

confronted the women and asked their purpose for being at the apartment complex. The

women informed Beamon they were doing “nothing.” After this brief encounter, Beamon

continued to lunch.

{¶ 4} At Peterson’s request, Beamon accessed the video footage, which depicted

two young women damaging Peterson’s automobile. Based upon the video time stamp,

the two women began damaging the vehicle at 12:12 p.m., and this time was consistent -3-

with the two women seen on the video being the individuals Beamon encountered as he

left for lunch. However, Beamon could not identify Shropshire as one of the women who

damaged Peterson’s automobile.

{¶ 5} Peterson, on the other hand, testified that the women in the video were

Shropshire and Shropshire’s sister. 1 The State did not introduce the video at trial.

Instead, the State introduced four screen shots taken from the video. Exhibit 1 consisted

of two screen shots depicting the women as they were damaging Peterson’s automobile.

Exhibit 2 consisted of two screen shots depicting the women running from Peterson’s

automobile. The screen shots were not sufficiently clear to allow the identification of the

women. Beamon testified that he could only create screen shots from the security video,

but that the apartment complex’s “main office” could retrieve the entire video and put it on

a thumb drive.

{¶ 6} Shropshire was convicted of criminal damaging in violation of R.C.

2909.06(A), a second degree misdemeanor. Shropshire was sentenced accordingly,

and this appeal followed.

Analysis

{¶ 7} Shropshire’s first assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT IMPROPERLY ADMITTED

PREJUDICIAL TESTIMONIAL AND PHYSICAL EVIDENCE.

Admission of Testimony Regarding the Content of the Security Video

{¶ 8} The first issue raised by Shropshire under the first assignment of error is that

1 The record does not reflect whether Shropshire’s sister was charged with criminal damaging. -4-

the trial court, in the absence of the security video’s admission, erred by allowing Peterson

to testify concerning the content of the video.

{¶ 9} A trial court has broad discretion regarding the admission of evidence, and a

“reviewing court should not disturb evidentiary decisions in the absence of an abuse of

discretion.” State v. Montgomery, 2d Dist. Montgomery No. 28404,

, quoting State v. Noling,

,

,

.

The issue then is whether the trial court’s admission of the contested evidence was

unreasonable, arbitrary, or unconscionable.

{¶ 10} Citing to Evid.R. 1002, Shropshire asserts that the “best evidence” of the

video’s content was the video itself. Pointing to Beamon’s testimony regarding how the

video could have been obtained, Shropshire also argues that the State’s failure to obtain

and introduce the video was not excused under Evid.R. 1001, which states that the

content of a recording may be introduced by other evidentiary means when the recording

is not “available [through the use of a] judicial process or procedure * * *.”

{¶ 11} Though acknowledging Evid.R. 1002 and Evid.R. 1004, we cannot

conclude that the trial court’s decision to allow Peterson’s testimony was an abuse of

discretion. Evid.R. 901(A) states that “[t]he requirement of authentication as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.” The authentication threshold is low,

meaning that the party seeking to introduce the disputed evidence need only demonstrate

“a reasonable likelihood that the evidence is authentic.” State v. Yuschak, 2016-Ohio-

8507,

, ¶ 16 (9th Dist.), quoting State v. Moorer, 9th Dist. Summit No.

27685,

. -5-

{¶ 12} Evid.R. 901(B) provides a non-exclusive list articulating how a particular

evidentiary submission may be authenticated or identified. Evid.R. 901(B)(4) provides

that an identification can be accomplished by “[a]ppearance * * * or other distinctive

characteristics, in conjunction with [the surrounding] circumstances.” Evid.R. 901(B)(5)

states, in an analogous situation, that “[i]dentification of a voice, whether heard firsthand

or through mechanical or electronic transmission or recording, [may be accomplished] by

opinion based upon hearing the voice at any time under circumstances connecting it with

the alleged speaker.”

{¶ 13} Based upon Beamon’s testimony and the screen shots, the trial court knew

that a video depicting the women who damaged Peterson’s automobile existed and that

Peterson had viewed the video. The trial court also realized that Peterson had been

involved in a relationship with Shropshire, and thus would have been able to identify her

upon viewing the video. In our view, under these circumstances, Peterson’s video

identification was consistent with an identification sanctioned by Evid.R. 901(B)(4) and

(5). As such, we cannot conclude that the trial court abused its discretion by allowing

Peterson to identify Shropshire from the video. This portion of Shropshire’s first

assignment of error is overruled.

Admission of the Screen Shots

{¶ 14} Shropshire also attacks the admission of the screen shots upon the basis

of Evid.R. 1002. However, the screen shots were not the basis upon which Peterson

identified Shropshire. Given this, their admission, even if in error, was harmless. This

portion of the first assignment of error is overruled.

Admission of Testimony Regarding the Content of a Text Message -6-

{¶ 15} During his direct examination, Peterson testified without objection that on

May 20, 2019, he received a text message from Shropshire stating “I am gonna bust your

windows and slash your tires.” The text message was not introduced into evidence.

{¶ 16} Shropshire asserts that the “best evidence” of the text message’s content

was the text message itself, and, as such, the trial court erred by allowing Peterson to

testify about the message’s content in the absence of the message’s admission.

Additionally, Shropshire argues that Peterson’s testimony violated Evid.R. 804(B)(3).2

{¶ 17} As noted, Shropshire did not object to the admission of the content of the

text message; therefore, we review for plain error. Reversal of a trial court’s judgment

based upon plain error is reserved for the “most exceptional circumstances, and then only

to avoid a manifest miscarriage of justice.” State v. Brewer, 2d Dist. Montgomery No.

23442,

, ¶ 14, citing State v. Long,

,

(1978). Given this standard, reversal of a trial court’s judgment “requires [a reviewing

court] to conclude that, absent the plain error, the trial outcome would have been clearly

different.” (Citation omitted.)

Even assuming error in the admission of Peterson’s

testimony about the text message, we cannot conclude that the outcome of her trial would

have been different. This portion of Shropshire’s first assignment of error is overruled.

Admission of Other-Acts Testimony

{¶ 18} In the final portion of her final first assignment argument, Shropshire asserts

2 Evid.R. 804(B)(3) states that a statement which tends to expose a declarant to criminal liability is not admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” But Evid.R. 804 sets forth hearsay exceptions which apply when the declarant is unavailable as a witness; thus, Evid.R. 804(B)(3) is simply not helpful to Shropshire. Instead, Evid.R. 801(D)(2) applied, which provides that a party’s statement offered against her is, by definition, not hearsay. -7-

that the trial court erred by allowing Peterson to testify regarding an incident involving

Shropshire which occurred on the morning of May 20. Shropshire argues that this

testimony, which did not draw an objection, constituted other-acts testimony in violation

of Evid.R. 404(B). We disagree.

{¶ 19} The contested testimony involved an incident between Peterson and

Shropshire which occurred at a car wash. The relevant testimony was as follows:

[PROSECUTOR] Q. * * * On May 20th, where is the first place that you

came into contact with Brenda Shropshire?

[PETERSON] A. On Gettysburg, at the carwash.

Q. And what were you doing at the carwash?

A. Getting my car washed.

Q. Ok. And was Brenda with you?

A. No.

Q. Ok. Did she - - did - - she just came on the property there?

A. She seen me and pulled up - - pulled down on me.

Q. Ok. And, so, she was in a vehicle?

A. Yes.

Q. Was she alone at that time?

A. No.

Q. Who was with her?

A. Her sister.

Q. And what’s her sister’s name?

A. I don’t know her name. -8-

Q. Alright. But you know her as her sister?

A. M-hum.

Q. Is that a yes?

A. Yes.

Q. Ok. What did Ms. Shropshire say to you, if anything, at that time, at the

- - at the carwash?

A. Can you buy me a pack of cigarettes?

Q. And - -

A. I said yes. Gave her $10.00.

Q. Ok.

A. And she said, well, can I get some gas to put in the car. I said I aint got

no more money to be giving you and she just split. Went in the back of my

car, grabbed the tags out the window, jumped back in the other vehicle and

took off.

Q. Ok. Did she - - were those tags to your vehicle?

A. Yes.

Q. Did she have any ownership interest? Did she own the car or anything

like that?

A. What my car?

Q. Yeah.

A. No.

Q. Had you let her use the car?

A. No. -9-

Q. So, really - -

A. I don’t even let her in the car.

Q. So, no real reason to - - for her to take those tags at all?

A. In no way, shape or form.

Q. Ok. And what did you do when Ms. Shropshire took your tags to your

car?

A. I sat there for a minute and then I went to her mother’s house.

Q. Ok. And was - - is that where Ms. Shropshire was staying?

A. That’s where her mother stays.

Q. Ok. And why did you decide to go to Brenda’s mother’s home?

A. To tell her mother and brother that she snatched my tags out of my car.

Q. And did you have that conversation with Brenda’s mom?

A. M-hum.

Q. Yes?

A. Yeah. And her mom said call the police.

Q. Ok. And was Brenda there at that time?

A. She was sitting on the porch laughing.

Q. Did you call the police at that time?

A. Yes. I called the police and I - -and I left.

***

{¶ 20} Other-acts evidence which tends to establish a defendant has a particular

character trait and acted in conformity with that trait is not admissible to suggest the

defendant committed the crime at issue. But other-acts evidence is admissible under -10-

Evid.R. 404(B) when the evidence is relevant to an issue in the case, and the probative

value of the other-acts evidence is not substantially outweighed by the danger of unfair

prejudice. State v. Hartman, Ohio Slip Opinion No.

, __ N.E.3d __; State

v. Russell, 2d Dist. Greene No. 2020-CA-11,

. The rule includes a

non-exclusive list of legitimate reasons for the admission of other-acts evidence. This

list includes an actor’s motive for committing the crime at issue. The carwash incident

suggested that Shropshire had a motive to damage Peterson’s vehicle and, especially in

light of the closeness in time between the two incidents, we cannot conclude that the

probative value of the carwash testimony was substantially outweighed by unfair

prejudice. Thus, the admission of the other-acts testimony was not error, let alone plain

error. This final portion of Shropshire’s first assignment of error is overruled, resulting in

the entirety of the first assignment of error being overruled.

Second Assignment of Error

{¶ 21} Shropshire’s second assignment of error is as follows:

BRENDA SHROPSHIRE WAS DENIED HER CONSTITUTIONAL RIGHT

TO A FAIR TRIAL AS A RESULT OF THE CUMULATIVE ERRORS AT

TRIAL.

{¶ 22} The asserted cumulative error is based upon the already discussed

evidentiary issues. Based upon our resolution of the evidentiary issues, Shropshire’s

cumulative error argument is without merit. The second assignment of error is overruled.

Third Assignment of Error

{¶ 23} Shropshire’s third assignment of error is as follows:

THE STATE’S EVIDENCE WAS LEGALLY INSUFFICIENT TO SUSTAIN -11-

BRENDA SHROPSHIRE’S CONVICTION FOR CRIMINAL DAMAGING.

{¶ 24} Shropshire states that the issue presented by this assignment of error is

“[w]hether, excluding inadmissible evidence, sufficient evidence remains to support * * *

Shropshire’s conviction for criminal damaging.” A sufficiency of the evidence analysis

requires a reviewing court to review all of the admitted evidence, including evidence that

was improperly admitted. State v. Dillon,

,

, ¶ 53 (2d

Dist.). As Shropshire concedes, when all the admitted evidence is considered, the State

submitted sufficient evidence to support the criminal damaging conviction. Shropshire’s

third assignment of error is overruled.

Fourth Assignment of Error

{¶ 25} Shropshire’s fourth assignment of error is as follows:

BRENDA SHROPSHIRE WAS DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL GUARANTEED BY THE UNITED STATES AND OHIO

CONSTITUTIONS.

{¶ 26} The issue Shropshire raises in this final assignment of error is “[w]hether

* * * Shropshire was denied the effective assistance of counsel when [her attorney] failed

to object to improperly admitted, prejudicial evidence.” To establish ineffective

assistance of counsel, a defendant must establish that counsel’s performance was

deficient and that the deficient performance caused prejudice. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989). Given our resolution of the asserted evidentiary issues,

counsel’s performance either was not deficient or it did not cause prejudice.

Shropshire’s fourth assignment of error is overruled. -12-

Conclusion

{¶ 27} All of Shropshire’s assignments of error having been overruled, the trial

court’s judgment is affirmed.

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FROELICH, J. and HALL, J., concur.

Copies sent to:

Stephanie L. Cook Andrew D. Sexton Felice Harris Hon. Christopher D. Roberts