Commercial Litigation and Arbitration

Texts [Emails] Admissible as Admissions If Recipient Testifies They Came from a Party — Rule 403 Balance Viewed in Light Most Favorable to Proponent — A “Continuing Objection” on One Ground Doesn’t Preserve Error on Others

State v. Thompson, 2016-Ohio-7521; 2016 Ohio App. LEXIS 4384 (Ohio Ct. App. Oct. 28, 2016):

[*P1]  Craig Thompson appeals from his conviction for complicity to commit burglary. Finding no error, we affirm.

I. Background

 [*P2]  In March 2013, Thompson was indicted on a charge of complicity to commit burglary, in violation of R.C. 2911.12(A)(1), stemming from the entry of his co-conspirator, Bradley Burns, into the residence of Charles Fox, where Burns was expected to find $50,000.1 Thompson moved to suppress evidence and statements, and a suppression hearing was held. The trial court overruled the suppression motion in August 2013.

1   Burns was indicted on charges of burglary and kidnapping.

 [*P3]  In January 2014, the trial judge recused himself and the case was reassigned to a different judge. In April 2014, the case was tried to a jury. A mistrial was declared after the jury reported that it was deadlocked. Shortly before retrial, Thompson moved to dismiss the indictment [**2]  on double-jeopardy grounds. The trial court overruled the motion, and Thompson appealed. We found no double-jeopardy violation and affirmed. State v. Thompson, 2d Dist. Montgomery No. 26280, 2014-Ohio-5583.

 [*P4]  A second jury trial was held in December 2015. This jury found Thompson guilty, and the trial court sentenced him to six years in prison.

 [*P5]  Thompson appealed.

II. Analysis

 [*P6]  Thompson assigns six errors to the trial court. The first and second assignments of error present sufficiency and weight-of-the-evidence challenges respectively. The third assignment of error challenges the overruling of Thompson's motion to suppress. The fourth assignment of error challenges on hearsay grounds the admission of text messages. The fifth assignment of error claims ineffective assistance of counsel. And in the sixth assignment of error Thompson challenges his sentence, alleging that the trial judge included a punishment factor because Thompson exercised his right to a jury trial.

A. The sufficiency and weight of the evidence

 [*P7]  The first assignment of error alleges that Thompson's conviction is based on insufficient evidence. And the second assignment of error alleges that his conviction is against the manifest weight of the evidence. In these assignments of error Thompson [**3]  argues that the evidence does not show that he helped or intended to help Burns commit the burglary. Thompson says that the evidence supports his theory at trial that it was his brother, Brandon Thompson, who helped Burns.

 [*P8]  A sufficiency-of-the-evidence challenge requires that we consider "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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "We will not 'disturb a verdict on appeal on sufficiency grounds unless "reasonable minds could not reach the conclusion reached by the trier-of-fact."'" State v. Montgomery, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-5487, ¶ 74, quoting State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).

 [*P9]  In contrast to a sufficiency challenge, a manifest-weight challenge "concerns 'the inclination of the greater amount of credible evidence * * * to support one side of the issue rather than the other.'" (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). "A manifest-weight challenge requires us to consider the entire record, including the credibility of the witnesses, the weight of the evidence, and any reasonable inferences and determine whether '"the [panel] clearly lost its way and [**4]  created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."'" Montgomery at ¶ 75, quoting id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). "'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.'" Thompkins at 387, quoting Martin at 175.

 [*P10]  Eighty-three-year-old Charles Fox testified that in November 2012 he hired Thompson to do some repairs to the inside and outside of his residence on Heather Hollow Drive in Harrison Township, Ohio. Thompson was dating Fox's house guest, Shai Bathini, at the time. She convinced Fox to hire Thompson. Thompson worked on the house until January 2013. While he was working, either Fox or Bathini was usually there, though there may have been times that Thompson was alone.

 [*P11]  Bathini testified that while they were dating Thompson was in financial distress and needed money very quickly and very badly. Text messages between her and Thompson presented at trial suggest the same. Bathini said that his financial problems, and his anger at her for getting him further into debt and not helping him, caused their relationship to end in mid-January 2013.

 [*P12]  Nineteen-year-old Brad Burns [**5]  lived at America's Best Value Hotel and worked at the Tim Horton's on Main Street in Englewood, Ohio. Burns testified that Thompson was a regular customer at Tim Horton's and that they became friends. Burns said that Thompson often gave him rides to and from work and to and from the home of Burns's girlfriend, Kaitlyn Kerg. In February 2013, Burns was having money problems too. One day, said Burns, Thompson approached him with a proposition. Thompson told him that he "did work for the man" who lived on Heather Hollow Drive and that the man kept $50,000 in a safe in his bedroom. (Trial Tr. 462) He told Burns where and how to enter the house, where a spare key was hidden, and where he could find the man's bedroom. If Burns got the money, they were going to split it 50/50. Burns testified that two people knew about the plan--his girlfriend and a manager at Tim Horton's, Jeff Molton, who told Burns that "it was not a good idea," (Id. at 476). Kerg testified that she knew about the plan. The night before the burglary, Kerg said, she, Burns, and Thompson had gone back to Burns's hotel room. There Thompson and Burns started talking about how they needed money and were sick of being broke. Thompson then [**6]  said that he knew of a place that they could rob that had a safe with a lot of money in it.

 [*P13]  On February 3, 2013, after the Super Bowl game, said Burns, Thompson picked him up in his red pickup truck. They stopped at a Meijer store so that Burns could steal a roll of duct tape. Thompson then drove Burns to Fox's house. Burns said that he did not know Fox or Bathini, that he had never been to Fox's house before, and that he could not have found his way to the house from Meijer. When they got to Fox's house, Thompson drove past it a couple of times, and while he did, he explained to Burns where the bedroom was, that the safe would be in the closet off the bedroom, how to enter the house through the unlocked side door, and where the spare key to the house door was hidden. Thompson knew that the spare key was hidden in the garage on a nail under the deck leading up to the door to the house. When he had worked on the house, Fox allowed him to store his tools and paint under the deck. Thompson then stopped and Burns got out. Burns testified that he left his cell phone and his hotel room key in Thompson's truck because he did not want to risk dropping either inside the house. Burns testified [**7]  that he entered the house through the side of the garage, retrieved the spare key, and entered the house. He went straight upstairs to the bedroom in which Thompson had said the safe was located. Burns went directly into the closet and retrieved the safe. Burns said that he did not go into any other room.

 [*P14]  Fox was alone in the house that night because Bathini was at a Super Bowl party in Union, Ohio. He testified that he was in bed when he was awakened by a noise. He turned on the light and saw Burns--wearing a mask--standing in the doorway to his bedroom. At some point during the encounter, Burns ordered Fox out of bed and duct taped his hands together. Burns said to Fox, "'Where's your money?'" (Trial Tr. 270). Fox replied that Burns would find money in his wallet, on a table in the bathroom. After retrieving the money from the wallet, Burns walked into the closet and found the safe. Burns said to Fox, "'I want you to open the safe.'" (Id. at 272). Fox replied that he did not remember the combination. Burns hoisted the safe onto his shoulder and started to carry it downstairs. Fox told Burns that the combination was in the basement and that he would get it. When they got downstairs, Burns put [**8]  down the safe and cut the duct tape binding Fox's hands. Fox retrieved the combination and opened the safe. There was no money inside. Burns then left, taking some jewelry from the safe, along with a Kindle, an iPad, and a cell phone. Fox watched him go through a window to see if he got into a car, but he did not. Fox then called the police.


 [*P25]  Thompson was convicted of complicity to commit burglary. The complicity statute pertinently states: "No person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense." R.C. 2923.03(A)(2). And the burglary statute pertinently states: "No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense." R.C. 2911.12(A)(1). "A person acts purposely * * *, when the gist of the offense is a prohibition against conduct of a certain nature * * *, [if] it is the offender's specific intention [**15]  to engage in conduct of that nature." R.C. 2901.22(A).


C. The text messages

 [*P54]  The fourth assignment of error alleges that the trial court erred by admitting text messages that Thompson sent to Bathini. Thompson contends that the messages are hearsay and were not properly authenticated and were unfairly prejudicial.

 [*P55]  During Bathini's testimony, the State introduced some text messages from her cell phone that were sent between her and Thompson. Defense counsel objected, and a sidebar was held. The State told the judge that "the text messages show the nature of their relationship, the nature of, you know, the work that he did on the house, how that relationship developed, ended, what his financial situation was." (Trial Tr. 732). Defense counsel explained that his objection was on relevance grounds:

   I think that that's several different things, Your Honor. It's--working [**32]  on the house is one thing. The relationship he had with her romantically is another thing. His marital relationship with his wife was a third thing. The timeline would be a fourth thing. I'm not sure. Each text and each text string relates to a different one. There are some that establish the timeline of when they met and that they knew each other. There are other text strings that would establish what--when he was working and what he was doing for the job. There's another text that may establish that they were having financial problems. There was another text that may, you know, solely deal with their romantic relationship. I think it would depend on what exactly the text is. All of them together aren't relevant to any one thing and would not be relevant to all of the things.

(Id.). Noting the defense's continuing objection, the trial court overruled the objection and admitted the messages.

 [*P56]  Later during Bathini's testimony, defense counsel told the trial court that "a whole chunk" of text messages were not in the discovery packet from the State. (Id. at 749). Counsel appears to be objecting to the admission of the text messages because he did not receive some of them until that day.

 [*P57]  Thompson [**33]  contends that the text messages from Bathini's cell phone were hearsay, were not properly authenticated, and were unfairly prejudicial. But at trial Thompson did not object to the admission of the messages on any of these grounds. To be sure, he did object, but he did so on the grounds that they were not relevant and that he had not received them in discovery. Thompson acknowledges this but says that counsel entered a continuing objection to admission and that this is sufficient to preserve the issue for review.3 We disagree. An objection on one ground does not preserve an issue on a ground not raised in the objection. State v. Barnes, 10th Dist. Franklin No. 04AP-1133, 2005-Ohio-3279, ¶ 28, citing State v. Davis, 1 Ohio St.2d 28, 33, 203 N.E.2d 357 (1964).

3   "I'd just renew my objection previously, Your Honor. Other than [that], I have no new objection." (Trial Tr. 903).

[*P58]  Thompson did not object on hearsay, authentication or prejudice grounds when the error could have been addressed or cured. Although he did object to admission, Thompson did not raise these specific objections until this appeal. Because Thompson failed to object at trial on the specific ground raised here he has forfeited the issue limiting us to plain error analysis. State v. Tibbetts, 92 Ohio St.3d 146, 160-61, 749 N.E.2d 226 (2001); Crim.R. 52(B). But even if Thompson had [**34]  objected to the text messages' admission on the grounds he argues here, we would not find error, plain or otherwise. The text messages are not hearsay. They are party-opponent admissions properly authenticated by Bathini. Nor are the messages unfairly prejudicial.

 [*P59]  A statement is not hearsay if it "is offered against a party and is * * * the party's own statement." Evid.R. 801(D)(2)(a). "Courts have held that photographs of text messages sent from a defendant are not hearsay, instead they qualify as a party-opponent admission under Evid.R. 801(D)(2), as long as the statements are properly authenticated." State v. Davis, 12th Dist. Madison No. CA2015-05-015, 2016-Ohio-1166, ¶ 21, citing State v. Bickerstaff, 11th Dist. Ashtabula No. 2014-A-0054, 2015-Ohio-4014, ¶ 15; and State v. Shaw, 2013-Ohio-5292, 4 N.E.3d 406, ¶ 43 (7th Dist.). "[I]n most cases involving electronic print media, i.e., texts, instant messaging, and e-mails, the photographs taken of the print media or the printouts of those conversations are authenticated, introduced, and received into evidence through the testimony of the recipient of the messages." State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233, ¶ 73 (8th Dist.). "Therefore, statements from text messages are properly authenticated and are admissible as a party-opponent admission when the recipient of the messages identifies the messages as coming from the defendant." (Citation omitted.) Davis at ¶ 21. Here, Bathini recited [**35]  the content of the text messages and identified which messages she sent and which were sent by Thompson. The messages were properly admitted through her testimony because she was the recipient, had personal knowledge of their content, and could identify the sender as Thompson.

[*P60]  Thompson contends that the text messages were unfairly prejudicial because they were misleading. He says that they show only one side of the conversation and says that the only messages presented were those that show him at fault. Thompson says that other messages were not presented that would have shown context.

 [*P61]  Relevant evidence is inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury." Evid.R. 403(A). When determining whether evidence's probative value is "substantially outweighed" by the danger of prejudice, the evidence is viewed in a light most favorable to the proponent, maximizing its probative value and minimizing any prejudicial effect to the party opposing admission. State v. Frazier, 73 Ohio St.3d 323, 333, 652 N.E.2d 1000 (1995); State v. Dun, 58 Ohio St.3d 86, 92, 568 N.E.2d 674 (1991).

 [*P62]  Bathini specifically testified that the text messages that she discussed at trial were only some of the messages that she received from Thompson. So [**36]  the jury knew that it was not hearing about every message that Thompson sent. Some messages that were presented show that Thompson was having serious financial problems and needed a lot of money very quickly. Other messages suggest that Thompson and Bathini's relationship ended poorly. Bathini provided context for the messages that were presented by explaining what the conversations were about. We see little danger of unfair prejudice.

 [*P63]  The fourth assignment of error is overruled.

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