YouTube Admissibility — Admission of Defendant’s Words in Video, However Accomplished, Violates Crawford Confrontation

State v. Patton, 2015 Ohio App. LEXIS 1783 (Ohio Ct. App. May 15, 2015):

[*P1]  Daurin Patton, appeals a December 10, 2012 judgment of conviction and sentence of the Lucas County Court of Common Pleas on two counts of aggravated murder with two accompanying firearms specifications and one count of aggravated robbery. The aggravated murder convictions were for violations of R.C. 2903.01(A) and (F), unspecified felonies. The accompanying firearm specifications were pursuant to R.C. 2941.145. The aggravated robbery conviction was for a violation of R.C. 2911.01(A)(1), a felony of the first degree. The convictions were pursuant to guilty verdicts returned by a jury at trial in November 2012.

 [*P2]  In the judgment, the trial court sentenced appellant to serve a 10 year prison term on the aggravated robbery conviction and imposed life terms without parole on both aggravated murder convictions. The court ordered that the sentences for the aggravated murders and aggravated robbery be served consecutively [**2]  to each other. The court merged the two firearm specifications pursuant to R.C. 2929.14(B)(1) and imposed a mandatory and consecutive three-year term of imprisonment on one firearm specification.

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YouTube Video

 [*P36]  Under assignment of error No 1, appellant argues that the trial court erred by permitting the state to play a video of two alleged gang members with a semi-automatic rifle at trial. Appellant contends that admission of the video violated his Sixth Amendment right to confront witnesses and that the video also constituted inadmissible hearsay.

 [*P37]  The video is less than three minutes in length and was uploaded to YouTube in December 2007. It depicts two young men with an SKS style assault rifle with two ammunition magazine clips. The state used the video at trial as evidence that appellant, as a member of the gang Bagdad Boyz, had access to weapons of the type used to kill Timothy Blair and Veronica Serrano.

 [*P38]  Appellant raises objections to the video on confrontation and [**16]  hearsay grounds for the first time on appeal. Prior to trial, appellant objected to evidence of gang related activity in a motion in limine on the grounds that the evidence was irrelevant and more prejudicial than probative. At trial counsel renewed the objection on the same grounds: "Objection, Judge, based on prior objection." Accordingly, appellant waived all but plain error on claimed error challenging the admissibility of the evidence on confrontation and hearsay grounds. See State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 174.

 [*P39]  The Ohio Supreme Court has identified the standard for noticing plain error:

   First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. * * * Third, the error must have affected "substantial rights." We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial. State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16 and State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

 [*P40]  Even where these three prongs are met, notice of plain error is taken "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Eafford at ¶ 12, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph [**17]  three of the syllabus.

Confrontation Clause

 [*P41]  The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." In "Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination."

 [*P42]  The state contends that the YouTube video was admitted without sound and, therefore, the court's ruling did not admit any testimonial statement at trial. The record discloses, however, that statements from the video were recited at trial.

 [*P43]  At the hearing on appellant's motion to suppress the video, the trial court originally ordered that the video could be played at trial but excluded all audio, except for references to Bagdad and Bagdad Boyz memberships, and references to the weapon involved in the video.

 [*P44]  At trial, the court approved a different procedure to achieve the same result. The state played the video portion of the recording, without any audio. The state was permitted to question Office Doug Allen of the Toledo Police Department's Gang Task Force concerning statements made in the video within the [**18]  limited areas of content previously set by the court. The court permitted this procedure for reasons of "expediency" as a means to enforce the court's limitations on use of audio from the without requiring technical editing of the recording.

 [*P45]  Officer Doug Allen testified that prior to trial he had heard the audio portion of the recording. The officer testified that the two men in the video were doing a rap. The officer testified to the names of the two men in the video and identified them as gang members of the Bagdad Boyz gang. Officer Allen testified further that the individuals in the video identified themselves as "Bagdad" and that they were from the "North." The state also questioned the officer as to statements made in the video about how many of the particular type weapon they had:

   Q. And with respect to that particular weapon, do they indicate how many of these type weapons that they have?

A. They make reference at one point in here that they have a few of them.

 [*P46]  In our view, the fact that the state was permitted to use Officer Allen to voice statements made in the video, as a manner of convenience to avoid editing problems at trial, did not remove the testimonial nature of the [**19]  court's ruling. The court's ruling permitted introduction into evidence of the out of court statements of the young men, voiced by Officer Allen, that the Bagdad Boyz gang possessed a few SKS automatic rifles at the time of the video. As neither of the young men testified at trial, admitting their out of court statements into evidence at trial denied appellant his Sixth Amendment to confront witnesses against him and constituted an obvious defect in trial proceedings.

Hearsay

 [*P47]  "To constitute hearsay, two elements are needed. First, there must be an out-of-court statement. Second, the statement must be offered to prove the truth of the matter asserted. If either element is not present, the statement is not 'hearsay.'" State v. Maurer, 15 Ohio St.3d 239, 262, 473 N.E.2d 768 (1984); see Evid.R. 801(C). The statements by the two young men were out of court statements and the statements were admitted to prove the truth of the matter asserted, namely that the Bagdad Boyz gang possessed a few automatic rifles of the type shown in the video. Accordingly, admitting the statements into evidence at trial was an obvious legal error, as the statements constitute hearsay. Evid.R. 802.

 [*P48]  We conclude, however, that these errors did not rise to the level of plain error, as the admission of the YouTube [**20]  video did not affect the outcome of the trial. As more fully discussed in our consideration of whether the verdicts were against the manifest weight of the evidence, we conclude that the evidence of appellant's guilt at trial was overwhelming. We find assignment of error No. 1 not well-taken.

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