State v. Pointer

[Cite as State v. Pointer, 2011-Ohio-260.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2010-CA-0008
ARTENSON POINTER :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 09-CR-
485

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 20, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. R. JOSHUA BROWN
Prosecuting Attorney 32 Lutz Avenue
38 South Park Street Lexington, OH 44904
Mansfield, OH 44902
[Cite as State v. Pointer, 2011-Ohio-260.]

Gwin, P.J.

{¶1} Defendant Artenson Pointer appeals a judgment of the Court of Common

Pleas of Richland County, Ohio, which convicted and sentenced him after a jury found

him guilty of four counts of kidnapping with firearm specifications; two counts of

felonious assault, one of which carried a firearm specification; one count of having

weapons under a disability; one count of intimidation; and two counts of abduction with

firearm specifications. Three other counts of having weapons under a disability were

dismissed, and the court merged three of the kidnapping counts with the abduction

counts. Appellant assigns a single error to the trial court:

{¶2} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

ALLOWING THE JURY TO RECEIVE A TRANSCRIPT OF A CONTROLLED PHONE

CALL WHILE THAT CALL WAS BEING PLAYED FOR THE JURY.”

{¶3} On or about March 18, 2009, appellant and the victim were together in

Mansfield, Richland County, Ohio. Nolan Lovett joined them. Appellant became upset

with Lovett, and beat him up.

{¶4} Learning various rumors were spreading about appellant and Lovett, the

two men met together to determine the source of the rumors. Concluding the victim

was spreading lies about them, appellant, Lovett and Camille Brodnaxe agreed to

confront her. The appellant, the victim, and Lovett got into the victim’s car to take her to

Brodnaxe’s apartment. The victim did not wish to go, and eventually pulled the keys

from the ignition. Appellant produced a .22 handgun and Lovett exited the car.

Appellant fired a shot which did not strike the victim, but lodged in the gearbox of the

vehicle.
Richland County, Case No. 2010-CA-0008 3

{¶5} Appellant, Lovett, and the victim then went to Brodnaxe’s apartment. At

some point during the confrontation, appellant struck the victim once in the face and

once in the ribs. The punch to the ribs caused the victim to have difficulty breathing. At

that point, Brodnaxe intervened. Appellant left Brodnaxe’s apartment with the victim

and eventually took her to the emergency room. There, the victim told the hospital

personnel she had been attacked by two transients.

{¶6} The following day, one of the victim’s co-workers noticed her injuries and

called the police. Detective Jeffrey Shook contacted the victim, and she told him

appellant had shot at her and punched her. Detective Shook had the victim make a

phone call to the appellant on her cell phone, while the detective listened on speaker,

and recorded it. In the call, the victim spoke with the appellant about the injuries he had

inflicted, and he did not deny doing so.

{¶7} Officers executed a search warrant and found the handgun. Shortly

thereafter, a friend of the appellant’s mother contacted the victim, claiming to work for

the NAACP. He asked her to sign a typewritten statement which said, among other

things, that appellant did not shoot her. The victim objected to this, and added the

phrase “but had shot at” her. She then signed this statement.

{¶8} Sometime later, the same man approached appellant with another

typewritten statement that said appellant did not shoot her, at her, did not hit her, did not

hurt her in any way, and the allegations and charges against him were completely false.

The victim signed the statement.

{¶9} At trial, the victim and Lovett testified to the events of March 18, and March

25. Brodnaxe also testified for the State, corroborating their testimony.
Richland County, Case No. 2010-CA-0008 4

{¶10} During the direct examination of the victim, she testified she had made the

phone call to appellant, knowing it was recorded. The victim testified she had listened

to the recording and had seen a transcript of the call. She reviewed the transcript and

made corrections to it, and testified it was accurate. The State asked to introduce the

tape recorded phone conversation between appellant and the victim.

{¶11} The State offered to give the jury copies of a transcript of the call for the

jury to follow along with as the tape was played, because of the poor quality of the tape

recording. Appellant’s counsel objected, informing the court counsel had never seen the

transcript. He stated: “*** this call is really hard to hear. It’s difficult to hear him. I don’t

know what they figured out, whoever typed this, what they thought he said. It’s unclear.

I haven’t seen the transcript. I figured if they wanted to listen to the tape, they can listen

to the tape.”

{¶12} The State conceded the call was difficult to hear, but informed the court the

victim and the detective had both reviewed the transcript and it was accurate.

Appellant’s counsel objected that the tape had not been verified. Counsel conceded that

some of the transcript was accurate, but argued he had been unable to distinguish parts

of the tape, and believed some of the transcript might be incorrect. Thereupon, the court

permitted the State to give the jurors the transcripts and play the tape.

{¶13} After the State played the tape, the victim testified the tape was an

accurate recording of her conversation with the appellant. Detective Shook testified later

in the trial, and described how the tape recording was made. He also testified the

transcript was accurate.
Richland County, Case No. 2010-CA-0008 5

{¶14} Appellant argues the trial court committed reversible error in allowing the

jury to receive a transcript of the controlled phone call while the call was being played.

Appellant cites us to Evid. R. 1002, the “Best Evidence Rule”. The Rule provides the

original writing, recording, or photograph is required to prove the content of the writing,

recording, or photograph except as otherwise provided by the Rules or the Supreme

Court.

{¶15} Appellant correctly states the tape recording was the best evidence of its

contents. Appellant cites us to Harleysville Mutual Insurance Company v. Santora

(1982), 3 Ohio App. 3d 257, 444 N.E. 2d 1076. In the Santora case, the Court of

Appeals for the 8th District, Cuyahoga County, held a transcript is not admissible in

evidence if the original tape recorded conversation is available. The court reasoned a

transcript cannot capture the intangibles of conversation such as voice, tone, emphasis,

evasiveness, faltering, or emotions. The court also cautioned providing both a transcript

and the original tape might give undue emphasis to the content or give the jury the

impression the court believed it was especially good and/or significant.

{¶16} The State points out the 8th District later disapproved the Santora case in

State v. Graves (October 6, 1994), Cuyahoga App. No. 66238. In Graves, the Court of

Appeals found a trial court has discretion to use transcripts of taped recordings as a

listening aid as long as the accuracy of the transcripts is not challenged. In Graves, the

officer who transcribed the tape testified regarding how the transcript was produced,

and the trial court reviewed the tape and compared it to the transcript. The Court of

Appeals found the only challenge to the evidence was the defendant’s assertion it was

not his voice on the tape. The Court of Appeals found that because the defendant had
Richland County, Case No. 2010-CA-0008 6

testified at trial, the jury was able to compare his voice to that on the tape. The court

also found no prejudice in the transcript identifying the defendant as one of the

speakers on the tape. The court found Santora would apply if the only proof of the

conversation was the transcript, and there was no recording available. The court found

the jurors in this case listened to the tapes while using the transcript as an aid and the

transcript did not give “emotive direction” to the jurors. The court found the jury would

rely on the recorded words rather than the transcript. Graves at 4.

{¶17} The State cites State v. Waddy (1992), 63 Ohio St. 3d 424, 588 N.E. 2d

819. In Waddy, the defendant argued the use of the transcripts to help the jurors follow

the tapes violated the Best Evidence Rule. The Supreme Court found because the

transcripts were not admitted into evidence, the Rules of Evidence were irrelevant. The

court found the defendant had conceded the transcripts’ accuracy, and the court itself

compared the tapes and transcripts. The court concluded if there are no material

differences between the tape admitted into evidence and a transcript given to the jury as

a listening aid, there is no prejudicial error. Waddy at 445, citing State v. Holmes

(1987), 36 Ohio App. 3d 44, 521 N.E. 2d 479 and United State v. Smith (C.A. 6, 1976),

537 F. 2d 862. Waddy was later overruled by the Ohio Supreme Court on a different

issue in State v. Smith (1997), 80 Ohio St. 3d 89, 1997 -Ohio- 355, 684 N.E.2d 668.

{¶18} In the Holmes case, the court found the Santora case held the transcript

was inadmissible because the original recording was available and the transcript was

not prepared by an objective third party. The original recordings in the Holmes case

were available, although not “fully audible”. The court concluded the trial court did not

observe procedural safeguards such as making a methodical review of the tapes and
Richland County, Case No. 2010-CA-0008 7

transcripts in defense counsel’s presence and marking corrections on the transcripts.

The Holmes court found, however, the appellant did not point out any material

differences between the tapes and the transcripts supplied to the jury as a listening aid,

and found no prejudicial error in the trial court’s exercise of its discretion.

{¶19} The State points out the victim and Detective Shook, who were both

present during the phone call, reviewed the transcript and testified it accurately related

what was said during the phone call. The State also asserts the jury was allowed only

the recording during deliberation and the transcripts were never offered as evidence.

Appellant does not allege any inaccuracies in the transcript.

{¶20} The jury also heard the testimony of Brodnaxe and Lovett, and viewed

photographs of the bullet hole in the victim’s car. There was ample evidence in addition

to the tape recorded conversation.

{¶21} This court cannot reverse the court’s decision unless we find it abused its

discretion. “The term ‘abuse of discretion’ * * * implies that the court's attitude is

unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151,

157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v. Custer (1940), 137 Ohio St. 448,

19 O.O. 148, 31 N.E.2d 855.

{¶22} We find the trial court did not abuse its discretion in permitting the jury to

use the transcripts as a listening aid while the recording was being played.

{¶23} The assignment of error is overruled.
Richland County, Case No. 2010-CA-0008 8

{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. PATRICIA A. DELANEY

WSG:clw 0106
[Cite as State v. Pointer, 2011-Ohio-260.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ARTENSON POINTER :
:
:
Defendant-Appellant : CASE NO. 2010-CA-0008

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to

appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. PATRICIA A. DELANEY