State v. Black

[Cite as State v. Black, 2018-Ohio-1342.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 MA 0085
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
KEITH L. BLACK )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2015 CR 852

JUDGMENT: Affirmed in Part.
Limited Remand.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Atty. David L. Engler
181 Elm Road, N.E.
Warren, Ohio 44483

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: March 29, 2018
[Cite as State v. Black, 2018-Ohio-1342.]
WAITE, J.

{¶1} Appellant, Keith L. Black, challenges his convictions in the Mahoning

County Common Pleas Court for felonious assault and having a weapon while under

disability. Appellant cites two issues on appeal. First, whether the trial court abused

its discretion in overruling Appellant’s objection to the admission of a photograph

from Appellant’s Facebook account into evidence. Second, whether Appellant’s

convictions for felonious assault and having a weapon while under disability were

against the manifest weight of the evidence. For the reasons expressed below, we

conclude that the trial court did not abuse its discretion in permitting the Facebook

photograph to be admitted into evidence, as Appellant’s own testimony satisfied the

requirement of authentication for the Facebook post pursuant Evid.R. 901(A).

Moreover, we conclude Appellant’s convictions for felonious assault and having a

weapon while under disability were supported by the manifest weight of the evidence.

Appellant’s assignments of error are without merit and the judgment of the trial court

is affirmed in part. We must, however, remand the matter to the trial court for the

limited purpose of entering a nunc pro tunc entry addressing the consecutive

sentencing findings made at the sentencing hearing.

Factual and Procedural History

{¶2} In the early morning of August 14, 2015, Nicholas Duecaster

(“Duecaster”) drove to the Shell gas station on the corner of Midlothian Boulevard

and South Avenue in Youngstown. While there, Duecaster saw Appellant. He knew

Appellant because they had previously been incarcerated together.
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{¶3} Appellant purchased cigars from the gas station and the two proceeded

to modify them in order to smoke marijuana while in the parking lot of the gas station.

Appellant requested a ride from Duecaster to Charlotte Hubbert’s (“Hubbert”) house

on Lucius Avenue. Appellant and Duecaster both testified at trial and gave

substantially similar testimony up to this point, when their descriptions of the events

that followed differed.

{¶4} According to Duecaster, he drove Appellant to Hubbert’s home, where

Appellant exchanged crack cocaine received from Duecaster for pain medication

from Hubbert. Duecaster remained outside in the car and testified that he became

increasingly concerned when Appellant did not return for several minutes. Duecaster

was uneasy because he had heard rumors that he was perceived as a “snitch.”

(2/22/16 Tr., p. 339.) Duecaster sent a text message “Black, north side” to his friend

Andre Laury (“Laury”) to indicate who he was with and where Appellant was from.

(2/22/16 Tr., p. 355.) Laury was a clerk at the gas station and testified at trial that he

saw Duecaster and Appellant together that day and also witnessed them depart in

Duecaster’s car. Duecaster was considering leaving Hubbert’s residence when

Appellant emerged from the house. Appellant asked Duecaster to take him to a

house on Ravenwood Avenue. Duecaster complied and, on arriving at the

Ravenwood address, Appellant exited the vehicle and asked Duecaster if he had

change for $50. Duecaster reached for money in the center console of the car when

Appellant produced a gun and demanded that Duecaster give him all his money.

Duecaster attempted to drive away but Appellant shot him in his chest or upper
 -3-

abdomen. Duecaster testified that Appellant jumped on the car while he was driving

away and clung to the passenger side door frame before either jumping or falling off

the car a short distance down the road. Duecaster continued to drive away, hitting

street signs, before the car came to a stop and Duecaster was able to call 911.

{¶5} According to Appellant, prior to leaving Hubbert’s house on Lucius,

Duecaster pulled a gun on Appellant and attempted to rob him. Appellant testified at

trial that, in order to protect himself, he lunged at Duecaster and the two struggled

over the gun as the car began to move, the gun fired, and Appellant jumped out of

the car.

{¶6} Following jury trial on February 22, 2016, Appellant was found guilty of

felonious assault in violation of R.C. 2903.11(A)(2), (D), a felony of the second

degree with an accompanying firearm specification pursuant to R.C. 2941.145(A).

He was also found guilty of having a weapon while under disability in violation of R.C.

2923.13(A)(3), (B), a felony of the third degree.

{¶7} Appellant was sentenced to a term of eight years of incarceration on the

felonious assault count; three years of incarceration for the accompanying firearm

specification; and 36 months for having a weapon while under disability. The trial

court ordered each count to run consecutively to one another, for a 14-year total

prison term. Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1
 -4-

THE COURT ERRED WHEN IT OVERRULED APPELLANT'S

OBJECTION TO THE INTRODUCTION OF AN UNAUTHENTICATED

FACEBOOK PHOTO.

{¶8} In his first assignment of error, Appellant contends the trial court erred

in permitting a photograph from his Facebook social media account to be entered into

evidence. Specifically, Appellant alleges the photograph was not properly identified

or authenticated and that its probative value was substantially outweighed by the

danger of unfair prejudice. The photograph is from Appellant’s Facebook page, and

depicts Appellant at a rap concert on the same day the incident at issue occurred.

Appellant’s hand is bandaged in the photograph.

{¶9} The trial court admitted Appellant’s Facebook photograph into evidence

over his objection that it was not properly authenticated. Appellant’s counsel argued

that the state received the photograph from the victim’s sister before trial. The trial

court, in overruling the objection, stated:

The Court finds the Defendant opened the door through his testimony

about his physical condition. The State had no idea ahead of time as to

what the Defendant would say on the stand. Furthermore, the picture

goes to the credibility of the witness. Therefore, the Court will allow the

State to use the picture.

(2/22/16 Tr., p. 570.)

{¶10} The decision whether to exclude or admit evidence is within the sound

discretion of the trial court. State v. McGuire, 80 Ohio St.3d 390, 400-401, 686
 -5-

N.E.3d 1112 (1997). A reviewing court will not reverse the trial court’s decision

absent an abuse of discretion.

{¶11} Evid.R. 901 provides for a liberal standard regarding the authentication

of evidence. State v. Teague, 8th Dist. No. 90801, 2009-Ohio-129. Pursuant to

Evid.R. 901(A), the requirement of authentication for evidence to be admissible “is

satisfied by evidence sufficient to support a finding that the matter in question is what

its proponent claims.” Moreover, testimony by a witness with knowledge, “that a

matter is what it is claimed to be,” is an acceptable method of authentication. Evid.R.

901(B)(1). See State v. Smith, 7th Dist. No. 05 JE 1, 2006-Ohio-4684, ¶ 8.

{¶12} In the case sub judice, Appellant authenticated the Facebook

photograph by his own testimony on cross-examination. Appellant testified on cross-

examination about the extent of his injuries after the incident. Again, he claimed that

Duecaster had brandished the gun and that the two began wrestling over it when it

fired and Appellant jumped from a moving vehicle. He testified that his hands were

severely injured with skin removed and that he had injured his leg and had a “serious

limp.” (2/22/16 Tr., p. 553.) He testified on cross, “I really -- I was handicapped. I

was handicapped.” (2/22/16 Tr., p. 553.) He also indicated that, although he was not

bedridden, he left the house only on rare occasions.

{¶13} When presented with the photograph on cross-examination, which was

admitted into evidence by the state, Appellant testified that it was a picture of him and

his friend, and that he was familiar with the photograph. He testified that it was taken
 -6-

on the same day of the incident at a rap concert in Cleveland. (2/22/16 Tr., pp. 571-

572.)

{¶14} In his brief, Appellant complains that the state received the photograph

from Duecaster’s sister but that she was not called as a witness to authenticate the

photograph. Evid.R. 901(B)(1) has been interpreted by courts to allow “any

competent witness who has knowledge that a matter is what its proponent claims

may testify to such pertinent facts, thereby establishing, in whole or in part, the

foundation for identification.” TPI Asset Mgt. v. Conrad-Eiford, 193 Ohio App.3d 38,

2011-Ohio-1405, 950 N.E.2d 1018, ¶ 15. In response, the state asserts that

Appellant himself authenticated the photograph when he acknowledged the time and

location where it was taken and who he was with. In State v. Gibson, 8th Dist. Nos.

L-13-1223, L-13-1222, 2015-Ohio-1679, the Eighth District concluded that “a

combination of both personal knowledge of the appearance and substance of the

public Facebook profile pages, taken in conjunction with the following direct and

circumstantial evidence was sufficient to meet the threshold admissibility requirement

set forth in Evid.R. 901(B)(1).” Id. at ¶ 49.

{¶15} Regarding Appellant’s argument that this evidence unfairly prejudiced

the jury, Appellant contends that the photograph along with the state’s closing

statement were prejudicial. The state noted during closing that Appellant “was hurt

badly. You saw the pictures; you’ll see them more. * * * He’s hurt. He has to go

home. He has to convalesce. He has to go to the rap concert.” (2/22/16 Tr., p. 587.)
 -7-

{¶16} The record on appeal does not include the photograph at issue.

However, from Appellant’s testimony on cross-examination and from Appellant’s

brief, there is no indication that the contents of the photo were gruesome,

inflammatory or otherwise so prejudicial that it would unreasonably inflame the jury

against Appellant. See State v. Tingler, 31 Ohio St.2d 100, 285 N.E.2d 710 (1972).

The photograph was properly introduced into evidence and authenticated by

Appellant’s own testimony on cross-examination.

{¶17} Considering all of the evidence cited by the state at trial, including, but

not limited to: Appellant’s DNA found on the magazine clip in Duecaster’s car; no

sign of a disturbance outside of Hubbert’s house on Lucius but evidence of damage

to the street signs as well as roadside evidence at the Ravenwood location that is

consistent with Duecaster’s version of the event; and Appellant’s decision to flee from

the scene and evade police for six days after the incident; we conclude that the

Facebook photograph was properly authenticated by Appellant during his cross-

examination and was not unreasonably prejudicial and the trial court did not abuse its

discretion in admitting this evidence.

{¶18} Appellant’s first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

THE GUILTY CONVICTION ENTERED BY THE COURT IS AGAINST

THE WEIGHT OF THE EVIDENCE.

{¶19} In his second assignment of error, Appellant contends his conviction

was against the manifest weight of the evidence.
 -8-

{¶20} “Weight of the evidence concerns the inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than the

other.” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). “Weight is not a question of mathematics, but depends on its

effect in inducing belief.” (Emphasis deleted.) Id.

{¶21} When reviewing a manifest weight of the evidence argument, a

reviewing court must examine the entire record, consider the credibility of the

witnesses and determine whether, in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. Id. at 387, 389. Only in

exceptional circumstances will a conviction be reversed as against the manifest

weight of the evidence. Id. This strict test for manifest weight acknowledges that

credibility is generally the province of the factfinder who sits in the best position to

accurately assess the credibility of the witnesses. State v. Hill, 75 Ohio St.3d 195,

204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d

212 (1967).

{¶22} In the instant case, the jury was presented with evidence from which

there was a rational basis to conclude that Appellant knowingly shot Duecaster

during the incident in question rather than accidentally or in self-defense as Appellant

claimed during his direct examination.

{¶23} Both Duecaster and Appellant testified regarding how the incident

transpired. Both acknowledged that they knew each other from a previous
 -9-

incarceration. Both acknowledged that they smoked marijuana together at the gas

station before Duecaster gave Appellant a ride to Hubbert’s home on Lucius. The

difference in their stories regarding when the gun altercation occurred and who

instigated it was a credibility issue for the jury to determine. Hill, supra. The

Youngstown police officers testified that no evidence of an altercation was found at

the Lucius address, but that evidence of damaged street signs and tire marks off the

road were found at the Ravenwood address. This evidence was consistent with

Duecaster’s testimony. Further, Duecaster testified that he remained hospitalized for

a month due to his injuries. Appellant claimed he had been “handicapped” by the

altercation but, by his own testimony, he acknowledged that he attended a rap

concert in Cleveland later that same day. There was also evidence presented by the

state that Appellant’s DNA was found on a magazine clip for a gun, although the

actual weapon involved was never recovered.

{¶24} In determining whether a judgment is against the manifest weight of the

evidence, an appellate court must “be guided by a presumption that the findings of

the trier-of-fact were indeed correct.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 80 (1984). The finder of fact is best able to “view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” Id.

{¶25} Given the evidence in the record, this verdict was not against the

manifest weight of the evidence. Appellant’s second assignment of error is also

without merit and is overruled.
 -10-

{¶26} Although not presented as assigned error by Appellant or raised by the

parties, a review of the record, including the sentencing hearing and judgment entry

of sentence, does reveal a sentencing error in this case.

{¶27} As the trial court imposed consecutive sentences, it was required to

make the findings enumerated in R.C. 2929.14(C)(4) at the sentencing hearing and

must also incorporate those findings into the judgment entry of sentence. State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 654, ¶ 29. R.C.

2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the

offender and that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender

poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single
 -11-

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender's

conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

R.C. 2929.14(C)(4).

{¶28} At the sentencing hearing the trial court ordered Appellant’s sentence to

run consecutively and made the following findings:

Court also finds that consecutive sentences are not disproportionate to

the seriousness of the offense and that the effect of this crime affected

the families of the victim and the defendant.

Court finds that the defendant was on probation at the time that this

offense occurred.

Court finds that defendant’s criminal history demonstrates that

consecutive sentences are necessary to protect the public of future

crimes by this defendant.

(6/1/16 Sentencing Hrg. Tr., pp. 9-10.)

{¶29} Consequently, the trial court found R.C. 2929.12(C)(4)(a) and (b) were

applicable, rendering consecutive sentences necessary. The trial court’s findings at
 -12-

the sentencing hearing did comply with R.C. 2929.12(C)(4) and the mandates set

forth in Bonnell, supra.

{¶30} However, as has been noted by this Court in the past, this trial court

has once again failed to appropriately incorporate those findings in the written

judgment entry of sentence. In the sentencing entry the trial court stated:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require offender to serve prison terms

consecutively if the court finds that the consecutive service is necessary

to protect the public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the seriousness of

the offenders [sic] conduct and to the danger the offender poses to the

public, and if the court finds the following:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17 or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(Emphasis deleted.)

(6/16/16 J.E., p. 2.)

{¶31} As we have noted previously, “magic” or “talismanic” words in the

judgment entry of sentence are not required. The entry must contain, however, at

least an indication that the trial court made the necessary findings. State v. Bellard,

7th Dist.No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not give reasons for
 -13-

its findings, but must actually make those findings. At the sentencing hearing in this

matter the court engaged in the requisite analysis pursuant to R.C. 2929.14(C)(4).

However, the court’s judgment entry contains only a verbatim recitation of the

language of the statute. There is no indication that the trial court engaged in any

findings utilizing the language of the statute as a guide. As we have noted in multiple

occasions, quoting the statute in its entirety does not satisfy the requirements of

Bonnell. State v. Reinthaler, 7th Dist. No. 16 MA 0170, 2017-Ohio-9374, ¶ 17.

{¶32} A trial court’s failure to incorporate the statutory findings into the

sentencing entry after properly making those findings at the sentencing hearing does

not render the sentence contrary to law; such a clerical mistake may be corrected by

the court through a nunc pro tunc entry to reflect what actually occurred in open court

at the sentencing hearing. Id. at ¶ 18.

{¶33} The record reveals that the findings of the trial court, pronounced orally

during the hearing, demonstrate the court engaged in the required statutory analysis

prior to imposing consecutive sentences. The trial court’s failure to incorporate those

findings into the written judgment entry amounts to a clerical error necessitating a

nunc pro tunc entry to correctly align the language of the entry with the findings made

at the sentencing hearing and in accordance with Bonnell and its progeny.

{¶34} Based on the foregoing, the trial court did not err in admitting the

Facebook photograph into evidence as it was properly authenticated by Appellant’s

own testimony. Moreover, Appellant’s conviction is not against the manifest weight of

the evidence. However, the matter is remanded solely so that the trial court can
 -14-

enter a nunc pro tunc entry setting forth the applicable consecutive sentencing

findings made at the sentencing hearing. Appellant’s first and second assignments

of error are without merit and are overruled. The judgment of the trial court is

affirmed in part but remanded for the limited purpose of entering a nunc pro tunc

entry addressing the consecutive sentencing findings made at the sentencing hearing

according to law.

Donofrio, J., concurs.

Robb, P.J., concurs.