State v. Gordon

[Cite as State v. Gordon, 2018-Ohio-2292.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 106023

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

NEEKO GORDON

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-609261-A

BEFORE: Blackmon, J., E.A. Gallagher, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: June 14, 2018

-i-
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Maxwell Martin
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

{¶1} Neeko Gordon (“Gordon”) appeals from his convictions for multiple offenses

associated with the murder of Ricardo Nieves (“Nieves”). As Gordon states in his appellate

brief, “There is no dispute that Ricardo Nieves died on August 25, 201[6] from a gunshot wound

to the head. The issue in this case is who did it.” Gordon assigns the following errors for our

review:

I. Appellant’s convictions were not supported by sufficient evidence and the trial
court erred by denying his motion for acquittal.

II. The convictions were against the manifest weight of the evidence.

III. The trial court erred by admitting a jail call that was not properly authenticated
and violated Evid.R. 401, 402 and 403 and deprived appellant of his constitutional
rights to due process and a fair trial.

IV. The trial court erred by admitting a Facebook photograph that was not
properly authenticated and violated Evid.R. 401, 402 and 403 and deprived
appellant of his constitutional rights to due process and a fair trial.

V. The trial court erred by giving a flight instruction over appellant’s objection
and that was not supported by the record.

VI. The trial court erred and violated appellant’s due process right to a fair trial
by allowing Joe Butler to testify, over the defense’s objection, that appellant
carries a revolver and had been seen with it days before the shooting.

{¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial

court. The apposite facts follow.

I. Introduction

{¶3} On August 25, 2016, Robert Holsey (“Holsey”) agreed to purchase marijuana

from Gordon. Holsey and Gordon knew each other from playing basketball at Trent Park.

Nieves drove Holsey to the marijuana-purchase- meeting place on W. 38th Street in Cleveland.
As Nieves and Holsey drove toward the meeting place, they saw Gordon, became suspicious, and

started to drive away. Through the side mirror of the car, Holsey saw Gordon raise his arm with

an object in his hand, then Holsey heard shots fired. Gordon ran away. Holsey realized Nieves

had been shot. Holsey, who was in the passenger seat of the vehicle, ducked to avoid further

gunfire and pressed the gas pedal with his hand. Holsey stopped the car at the next intersection,

put Nieves in the back seat, and drove toward MetroHealth. Holsey got into an accident near the

hospital, and called 911.

{¶4} When the police arrived, Holsey told them that Nieves was shot by a man named

“Neeko” who stays at a house on W. 41st Street. The police went to this house and found

Gordon there. Holsey identified Gordon as the person who shot Nieves. Nieves later died from

a gunshot wound to the neck and head.

{¶5} On September 2, 2016, a grand jury indicted Gordon for aggravated murder,

murder, attempted murder, three counts of felonious assault, discharging a firearm in a prohibited

area, tampering with evidence, and having a weapon while under disability. On June 20, 2017, a

jury acquitted Gordon of the aggravated murder and attempted murder charges and convicted him

of all other counts. On June 29, 2017, the court sentenced Gordon to an aggregate prison term

of 28 years to life. It is from these convictions that Gordon appeals.

II. Trial Testimony

Eyewitness Robert Holsey

{¶6} Holsey testified that he and Nieves ran into Gordon at a convenient store on

Fulton Road on August 25, 2016. Holsey knew Gordon because they had played basketball

together in the neighborhood. Video surveillance footage from the convenient store was

introduced into evidence. It showed Holsey, Nieves, and Gordon in the store and in the parking
lot on the day in question. Gordon was wearing an orange shirt in the video, and he had a

dark-colored shirt or towel slung over his shoulder.

{¶7} Holsey arranged to buy marijuana from Gordon. Gordon said the marijuana was

“stashed,” and they were to meet nearby on W. 38th Street. Nieves drove his white Toyota

Corolla, with Holsey in the passenger seat, to the meeting place. As they were driving north on

W. 38th Street toward Robert Avenue, they saw Gordon waving at them.

{¶8} According to Holsey, “something odd came about.” Holsey continued:

As we was coming closer, he kept going back toward the fence. * *
* That’s cool. But what didn’t make sense is what the neighbors — he’s an
African American man and * * * there’s Caucasian white people right there and
they’re just staring at him. And he’s waving us towards the gate. That didn’t
make no sense. That was hot. As I mean hot that was too — that was too noisy
policewise. The neighbors look like why is he there? That didn’t make sense to
us. So as we drove off, Neeko Gordon was come here, right here. I got it right
here. It didn’t make no sense at all.

As soon as we went * * * he fired two, three shots as he was running towards the
car.

***

What I could see was him waving us towards the — trying to get us to exit the
vehicle towards the car. We said no. There was people out there that was
staring at him out the window like why is he right there and there was another guy
on his porch looking him [sic] weird. We wasn’t going to get out of the [sic] and
do a drug deal and somebody call the police right there.

***

It was pure daylight. He was the only African American man by that fence and
by that area and the rest were just two white guys and somebody staring out the
window.

{¶9} Asked what Gordon was wearing that day, Holsey replied, “Neeko Gordon was

wearing an orange shirt. He had on like something on top of his shirt like he was holding like a

towel because it was hot or a T-shirt because it was real hot.” Holsey further testified that
Gordon was wearing “black or bluish” sweatpants. Holsey testified that, from his “vantage

point,” he did not see Gordon with a gun. Asked how he knew that Gordon fired the shot,

Holsey testified as follows:

Because as I heard the first gunshot I looked back instantly and I could see
through that side window right him going like this, his arm extended like this,
orange T-shirt something still above his thing but there definitely was an object in
his hand there should be no reason his arm was up pointed towards as soon as I
looked through that side window right there and after the last shot I could see him
run down.

***

He ran towards the main street. He seemed like he was just running. I’m sorry.
It was a quick glance. It was fast because I wanted to duck from the bullet. But
as soon as I looked through that side window was Neeko that guy right there with
his arm up pointed forward just like that.

And I grabbed [Nieves] and I grabbed his head down so he wouldn’t get hit but he

was already dead. It was him. It was him. It was him.

{¶10} Holsey testified that after he heard the first gunshot and noticed that Nieves was

dead, he grabbed Nieves and “went down. I hit the gas pedal with my hand while grabbing

[Nieves] and I’m steering and I just flew down the street. * * * I know I had to hit two or three

cars but that’s what I had to do. It was gunshots going.” Holsey made it to the next street and

“threw” Nieves in the back seat of the car. Holsey drove toward MetroHealth, but he rear-ended

another car at the corner of W. 25th and Meyer Avenue. Holsey called 911. Holsey testified

that Nieves was bleeding “uncontrollably” and ultimately Nieves was taken by ambulance to the

hospital.

{¶11} Holsey told the police that he knew where the person who shot Nieves was. “I

know what house he at.” Holsey testified that when he played basketball with Gordon, Gordon

was “always in front of that house on 41st.” Holsey told the police the shooter’s name was
“Neeko” and described his appearance, including “a tattoo that says ‘Heaven’ right here on his

chest.” The police drove Holsey to the house he identified at 3252 W. 41st Street. Gordon was

there and the police brought him outside. Gordon had changed his pants and had no shirt on, but

Holsey identified him as the person who shot Nieves.

{¶12} On cross-examination, Holsey testified that he saw Gordon in the driver’s

side-view mirror “running towards the car with his arm extended,” although Holsey did not see

Gordon with a gun. Defense counsel asked Holsey the following:

Q: Well, what did Neeko have in his hand every minute of this video that you
just watched? What did he have in his hand the whole time he talked to
you by that car? What did he have in his hand?

A: A phone.
Officer Noel Hernandez

{¶13} Cleveland police patrol officer Noel “Bo” Hernandez testified that on August 25,

2016, he responded to an emergency call of “a male shot * * * in the area of W. 38th and Clark.”

Officer Hernandez was rerouted to W. 25th Street and Meyer Avenue, where the shooting

victim and the driver were involved in a motor vehicle accident. When officer Hernandez

arrived at the scene, he saw a white car and Holsey “outside screaming for help. Screaming for

my help and screaming for police help and yelling at us that his brother has been shot.”

According to Officer Hernandez, Holsey was “hysterical.”

{¶14} Holsey indicated that he knew who the shooter was, and he believed he knew

where the shooter went — to a house on “41st and Storer.” Officer Hernandez called his

Lieutenant and got permission to bring Holsey to the house in question. Police officers knocked,

and three black males opened the front door. All three males were shirtless. All three denied

being in the area of the shooting. The police told the men they were “investigating a shooting
that happened not too long ago.” One officer also stated, “and this might be related to a possible

homicide.” Gordon responded, “So he died?”

{¶15} The officers took Gordon outside for a cold stand. Officer Hernandez “heard

[Holsey] scream that’s him. That’s the shooter. That’s the guy who killed [Nieves].” The

police arrested Gordon at this time.

Detective Walter Emerick

{¶16} Cleveland police detective Walter Emerick testified that he works for the crime

scene investigation unit, and he performed a gunshot residue test on Gordon’s hands while

Gordon was outside on W. 41st Street, just over two hours after the shooting took place.

Detective Emerick also recovered an “[o]range T-shirt out of the hamper within one of the

bedrooms,” a black cell phone, and “.22 live rimfired rounds,” which are unfired bullets. On

cross-examination, Det. Emerick testified that he did not “bag” Gordon’s hands nor were

Gordon’s hands bagged at anytime that he was aware of.

Detective David Borden

{¶17} Cleveland police homicide Det. David Borden testified that he responded “to the

intersection of W. 38th and Robert [Avenue] and we started to canvass the area for witnesses and

other evidence that might be useful in this homicide investigation.” Det. Borden spoke with

Anthony Sobczyk, who lives one or two houses from where the shots were fired. Sobczyk gave

the following description of the suspect: “black male, five-ten, five-eleven, medium build,

wearing a red shirt and blue jeans and short hair.” According to Det. Borden, Sobczyk informed

him that the suspect used a revolver in the shooting and fired two shots. Det. Borden testified
that the police did not find any shell casings on the scene. According to Det. Borden,

“[r]evolvers do not eject casings.”

{¶18} Det. Borden testified that he interviewed Farmer Baker, who lives on the corner of

W. 38th and Robert Avenue and saw “an individual running west on Roberts” wearing a red

shirt.

Forensic Scientist Lisa Przepyszny

{¶19} Lisa Przepyszny testified that she is a forensic scientist in the trace evidence

department of the Cuyahoga County Medical Examiner’s Office. Przepyszny analyzed the

gunshot residue test taken from Gordon’s hands on August 25, 2016. She found “particles that

were characteristic of * * * gunshot primer residue and that would indicate that either the

individual fired a gun, was in close proximity to a fired gun, or handled an object that had

gunshot residue on it.”

Deputy Medical Examiner Dr. Todd Barr

{¶20} Dr. Todd Barr testified that he is a forensic pathologist who is serving as a deputy

medical examiner in the Cuyahoga County Medical Examiner’s Office. Dr. Barr performed

Nieves’s autopsy on August 26, 2016, and concluded that Nieves died from “a gunshot wound to

the head and neck.” In Dr. Barr’s opinion, Nieves’ wound “is most consistent with a distant

gunshot wound [of] [g]reater than four feet.” According to Dr. Barr, “the path of the projectile,

it entered in the * * * left side in the back of the neck, back of the head, and basically went

through the skin soft tissue muscles. * * * And then it travels through and fractures one of his

neck bones, one of his vertebrae. * * * And then it comes out through the back of his mouth * *

*.” Dr. Barr determined that the manner of death was homicide.

Eyewitness Anthony Sobczyk
 {¶21} Anthony Sobczyk testified that he lives at 3278 W. 38th Street in Cleveland, and

on August 25, 2016, at about 4:30 p.m., he witnessed a shooting on his street. He was getting

pizzas out of the passenger side of his car, which was parked on the street, when he saw a

“[b]lack male, about 18, short, short hair, medium build” walking “suspiciously” down the street.

Sobczyk testified that the person was wearing “I believe jeans and I think a bright shirt.”

According to Sobczyk, this person was suspicious because “in a matter of seconds he

disappeared. * * * He crouched behind the fence.”

{¶22} Sobczyk’s testimony continued: “Then I seen a white car coming down the street

slowly. It wasn’t racing or nothing. Stopped at the stop sign. Next thing I know the guy

jumped up, went in the street, fired the shot, car took off, he took off, that was it.” Sobczyk

testified that he did not see anybody else on the street, and he only heard one shot. According to

Sobczyk, the man was about 15 feet from the car when he fired the shot.

Officer Jonathan Holub

{¶23} Cleveland police officer Jonathan Holub testified that he is Officer Hernandez’s

partner, and he was driving their zone car on August 25, 2016, when they responded to the

shooting in question. The officers first went to W. 38th and Clark, near where the shooting

occurred, then went to W. 25th and Meyer, where Holsey and Nieves got into the car accident.

Next, Officer Holub drove Officer Hernandez and Holsey, who was in the backseat, to “the area

of W. 41st [and] the house where the suspect was.”

{¶24} After Gordon’s arrest, Gordon is captured on Officer Holub’s body camera talking

to a relative through the police car window. This family member came outside from the house

where the police found Gordon. After reviewing the video from his body camera, Officer Holub
testified that Gordon said, “it’s not enough. [T]hey don’t got shit on me.” Officer Holub further

testified that Gordon “said he was alone” at the time of the incident.

Eyewitness Letha Sanchez

{¶25} Letha Sanchez testified that she was sitting on the front porch of a home located at

W. 38th Street and Robert Avenue on August 25, 2016, when she heard gunshots. Sanchez

hurried off the porch and saw “somebody go by with a red shirt and black pants on. And it looks

like he was putting a gun in his pocket as he was running. * * * I just hurried up and * * * got in

my car and left.” Sanchez testified that she “was in a panic” and her observation “was real

brief.” Sanchez recalled that the person was “a black male,” but other than his clothing, she

could not identify him. Sanchez did not recall seeing anybody else.

Detective Thomas Lynch

{¶26} Cleveland police Det. Thomas Lynch testified that he interviewed Gordon, who

had been taken into custody at 3252 W. 41st Street. Gordon was in the back seat of a zone car

and agreed to speak with Det. Lynch about “what was going on that day.” Det. Lynch testified

that Gordon said he was at his girlfriend’s house, then he took the bus to W. 25th Street and

Clark, “then made his way to the convenience store on Fulton, Fulton Beverage * * *.” Gordon

ran into Holsey, who “he knew from the neighborhood, I believe he said it was from playing

basketball * * *.” Gordon told Det. Lynch that he was wearing a white T-shirt when he saw

Holsey. Gordon said he took the white T-shirt off at his aunt’s house on W. 41st Street, “before

the police arrived.” Det. Lynch asked Gordon if he had a cell phone, and Gordon told him that

he did not, because he smashed it after a fight with his girlfriend and threw it in a dumpster.

{¶27} Det. Lynch testified that the police obtained permission from the owner of the

house on W. 41st Street to “take a look around” for a gun. The police recovered Gordon’s cell
phone and “some bullets” from the owner of the house’s bedroom. Additionally, they

“recovered an orange shirt with a stain on the front of it” from a clothes hamper.

{¶28} Det. Lynch interviewed Gordon again at the police station the next day. Gordon

now told police that he had two cell phones, the one he smashed and the one found in the house

on W. 41st Street. Additionally, when the police told Gordon that surveillance video from the

day of the shooting showed him wearing an orange shirt — and not a white one, which is what he

previously told the police — Gordon admitted that he had been wearing an orange shirt the day

before. Gordon then gave the police “three basic stories as to what had occurred.”

[T]he first time we asked him about what had happened he said that he was
walking on West 38th Street when the car that he had talked to at the
convenient store drove by him and he told us as the car drove by him,
someone from behind him had shot at the car. * * *

The second story that he told was that as he got to the corner after leaving the
store and walking across the street as he was at the corner, the car passed by him
and he saw the male that he had talked to at the store like had his hand in the air
like he was saying what’s up and he — so he responded like what’s up like this,
raising his hand up in the air.

But he could not explain how Ricardo Nieves got shot.

And then the third way he explained what had happened — basically about
three-quarters of the way into the interview he’s like I’m going to tell you the
truth.

And he * * * stated that as he was walking down West 38th Street the vehicle that
he had encountered and spoke with Robert Holsey in at the convenience store
came down the street and as this vehicle approached him, Robert Holsey was
holding his hand in the air like he had a gun and that Neeko held his hand up in
the air * * * like to scare him like he had a gun pointed in his direction and then
Neeko heard a gunshot. And I asked him where did the gunshot come from and
he couldn’t explain where the gunshot came from.

{¶29} According to Det. Lynch, in all three versions of his story, Gordon claimed that he

was by himself and that he ran away from the scene.
 {¶30} On cross-examination, Det. Lynch stated that he did not interview the two other

black males who were in the house on W. 41st Street at the time Gordon was arrested. He also

stated that “one or two” of the eyewitnesses to the shooting that were interviewed stated that the

shooter was wearing a red, rather than an orange, shirt. However, Det. Lynch testified that

“[r]ed and orange is not a big discrepancy in my opinion.”

[I]f someone was saying the shooter had a white shirt on, then we’d have a
problem. Or if the shooter had a yellow shirt on, we have a problem. Red and
orange can be easily mistaken.

People see colors differently. I can see something as one color and someone else
sees it as a different shade of blue or something along those lines.

Red and orange in my opinion and Det. Sandoval’s opinion was not a huge

discrepancy.

{¶31} Det. Lynch testified that video surveillance footage taken from a nearby

neighborhood camera shows Gordon “running down the alley” wearing an orange shirt at 4:41

p.m. on August 25, 2016, which is immediately after the shots were fired.

{¶32} Det. Lynch testified that the orange shirt that was recovered from the clothes

hamper was not the same orange shirt that Gordon was wearing in the video footage captured just

prior to and after the shooting.

{¶33} Det. Lynch also established that nobody saw Gordon with a gun on day of the

shooting, and nobody saw more than one person running from the scene. The neighborhood

eyewitnesses, who do not know Gordon, heard gunshots and saw a black male in a “bright” or

red T-shirt run away from the scene, heading west on Robert. Holsey, who knows Gordon,

heard gunshots and saw Gordon, through the side-view mirror of the car, approaching the car

with his arm pointed out and then running from the scene.
 Toni Roberson

{¶34} Toni Roberson testified that on August 25, 2016, she was living at

3252 W. 41st Street, and Gordon, who she has

known “since he was about three,” was staying with

her. Gordon was friends with her son Joe Butler.

On that day, Gordon called Roberson looking for

Butler. Roberson was at the store at the time.

According to Roberson, there was nothing out of the

ordinary about the call or the way Gordon sounded.

When she went home, Gordon, Butler, another

friend, and the police were there. Roberson gave

the police permission to search her home. The

police recovered bullets but did not recover a gun

from her house. Roberson testified that the bullets

the police found belonged to her, although she did

not own a gun.

Joseph Butler

{¶35} Joseph Butler testified that, on August 25, 2016, he was living at

3252 W. 41st Street with his mother. He and Gordon grew up together. That afternoon, Butler

was at a store on W. 38th and Newark when Gordon called him and said, “I just did a drill.”

Butler testified that a “drill” meant that Gordon “just shot or killed somebody.” According to

Butler, Gordon was “real hyped like, you know, just hyped, like real hyped, anxious and stuff.

[H]e was asking where I was at, come home now, come home now.” Butler went home and
Gordon “was waiting for me at the screen door. And that’s when he went inside. He took his

shirt off, like a peach shirt, he took it off, and then that’s when the cops * * *, everybody came

and stuff.” Butler testified that Gordon put his shirt “right on his dirty clothes, his clothes bag.”

{¶36} Butler let the police in his house and he, Gordon, and another friend were asked

questions. Although Gordon had told Butler that he just shot somebody, Butler made no

mention of this to the police. Asked why, Butler testified as follows:

A: Cuz I didn’t want to be involved around this. I didn’t want to be doing
this * * * what I’m doing now. I don’t want to be around the police,
court, none of that, so I don’t want nothing to do with this. But since he’s
trying to say I did it, yeah.

Q: Did you do it?

A: No.

Q: Did you have anything to do with it?

A: No. I wasn’t even there.

{¶37} Butler testified that he knew Holsey through other friends and they “hung out.”

Eventually they stopped hanging out, and Butler testified as to why:

A: When me and [Gordon] and [Holsey], we hit a lick and [Holsey] hit his
house for bread and we ain’t even seen him since that day. And probably
like two and a half, three years.

Q: All right. So you said that [Gordon] and [Holsey] hit a lick?

A: Yeah.

Q: What does that mean?

A: Basically, well, we went — we took somebody up top basically.

Q: Took somebody up top? What does that mean?

A: Strong arm them.
 Q: You robbed somebody?

A: Well, basically.

Q: With the two of them[?]

A: Yeah, basically.

Q: And then you said that he —

A: He ran off. He just —

Q: [Holsey?]

A: He ran of[f] and we ain’t never seen him since then.

Q: And he took the money you were supposed to have?

A: We supposed to split it basically but he went his separate way and that was
that. We ain’t never seen him since then until — until he saw him.

{¶38} Butler testified that “back in these days in August,” Gordon “was carrying a

revolver,” and Butler saw Gordon with it “two days before” the shooting. Asked why Butler did

not tell the police this, Butler replied, “That was because I didn’t want to get involved with none

of this stuff at all. Period.” Butler testified that he did not carry a gun; however, on

cross-examination, defense counsel introduced seven photographs Butler posted on his Facebook

page that showed him with a gun or multiple guns, more than one of which was a revolver.

Detective Joselito Sandoval

{¶39} Cleveland police homicide Det. Joselito Sandoval testified that he and his partner

Det. Lynch investigated the murder of Nieves in August 2016. Det. Sandoval testified that,

according to Holsey, who witnessed the shooting, the suspect was named or nicknamed “Neeko.”
 After interviewing witnesses and gathering information, Det. Sandoval found no reason to

develop any other suspects in this case.

We had learned that there was one suspect in this shooting * * *.

We also saw the direction that was consistent with the witnesses on the direction
in which he fled from that intersection of West 38th and Robert which is the
direction of the house we were at West 41st.

Also based on our interviews with Toni Roberson and her son and friend, they
were consistent in their statements that they weren’t present at the house when the
shooting occurred and were at a different location up towards Clark Avenue and
returned * * * just prior to the police arriving.

{¶40} Det. Sandoval testified about surveillance video from a camera located at 3919

Robert Avenue, just west of W. 38th Street. The video shows that on August 25, 2016, at 4:38

p.m., Nieves’s white Corolla traveled through the intersection of W. 38th Street and Robert

Avenue. Gordon, who is wearing the same orange T-shirt with a dark colored shirt or towel

over his shoulder that he was wearing in the Fulton Beverage video from earlier that day, is seen

“running from where that car came from. There he goes. He runs to W. 39th Street up toward

Hyde Court.”

{¶41} Det. Sandoval next testified about surveillance video taken from a camera located

at 3929 Hyde Court. The video shows that on August 25, 2016, at 4:39 p.m., Gordon ran down

Hyde Court, which is an alley, heading toward W. 41st Street and wearing the same orange

T-shirt with the dark shirt or towel over his shoulder.

{¶42} Det. Sandoval next testified about his familiarity with the county’s system of

monitoring telephone calls made by inmates from the county jail. “Inmates when they arrive at

county jail are given specific [PIN] numbers to them to make phone calls.” Det. Sandoval

testified about a particular call that was played for the jury. Gordon allegedly identified himself
at the beginning of the call. “[T]hey have the greeting and part of the greeting is they advise you

this call is from — and they fill it in with their name, which was Neeko, and then it continued to

advise you about it being monitored and recorded.” The prosecutor then asked Det. Sandoval

the following:

Q: Were you able to hear the defendant in that clip talking about ditching the
gun?

A: Yes.

{¶43} Det. Sandoval testified that, essentially, Gordon’s phone conversation from jail is

about a hypothetical. Asked if Gordon said that he “hid a gun,” Det. Sandoval answered, “No.”

{¶44} Det. Sandoval next testified about a picture that he found posted on a Facebook

page belonging to “Yonko Boolin.” According to Det. Sandoval, Yonko was Gordon’s

nickname. Det. Sandoval testified that there “appears to be a shotgun in his right hand and he’s

standing next to a male in a yellow shirt that appears to have a firearm stuck in his waistband like

towards the front.” On cross-examination, Det. Sandoval testified that he does not know when

this picture was taken, he does not know if the gun is real, and he does not know who the man in

the photo is.

{¶45} Det. Sandoval testified that the shirt that was confiscated from the house on W.

41st is not the same shirt that Gordon was wearing in the video surveillance footage. Det.

Sandoval testified that Holsey’s testimony about what he saw through the side mirror of the car is

consistent with what the other witnesses saw.

The actions of the suspect are identical to what the witnesses had given us.

And you’re right, I understand red shirt, and * * * his pants were very dark blue.
But, the action of the suspect and this vehicle at the intersection were described as
Mr. Holsey describes it.
 So they kind of corroborated what he did tell us. And the direction of flight, it’s
the same thing.

***

We have witnesses that were at that intersection that saw the shooter run up to the
victim’s vehicle moving north bound at Robert Avenue, shoot into the car, the
only person out there on foot, and then flee on Robert.

We obtained video. If you’ll look at the video, there’s only one subject that
comes running in that direction from that white car and it’s Neeko Gordon.

And he runs downs the alley towards the house where he’s later found.

***

But see the clothing he’s wearing; you see he’s one in the same from the store. * *
*

From the store he’s wearing the blue shirt over his shoulder just like he is in the
alley where he’s seen with the blue shirt over his shoulder carrying his tennis
shoes in the other and his hand down in his pocket.

III. Sufficiency of the Evidence

{¶46} Crim.R. 29 mandates that the trial court issue a judgment of acquittal when the

prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and

sufficiency of the evidence require the same analysis. State v. Taylor, 8th Dist. Cuyahoga No.

100315, 2014-Ohio-3134. “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.” State v. Driggins, 8th Dist. Cuyahoga No. 98073,

2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997).
 {¶47} The relevant inquiry is 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. Vickers, 8th Dist. Cuyahoga No. 97365,

2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

{¶48} In the case at hand, Gordon argues that there was insufficient evidence to convict

him of all counts, because the state failed to prove that he was the person who shot and killed

Nieves. “Every criminal prosecution requires proof that the person accused of the crime is the

person who committed the crime. This truism is reflected in the state’s constitutional burden to

prove the guilt of ‘the accused’ beyond a reasonable doubt.” State v. Tate, 140 Ohio St.3d 442,

19 N.E.3d 888, 2014-Ohio-3667, ¶ 15.

{¶49} Specifically, Gordon argues that he was merely in the area of W. 38th St. and

Robert Avenue, in Cleveland, when the shot was fired. Nobody saw him with a gun and no gun

was recovered. Three eyewitnesses described a man wearing a red shirt and black pants who

was running away from the scene. Holsey identified Gordon as the shooter, and it is undisputed

that Gordon was wearing an orange shirt at the time of the shooting. According to Gordon, this

evidence is insufficient to support his convictions.

{¶50} Gordon was convicted of the following offenses: murder in violation of R.C.

2903.02(B); felonious assault in violation of R.C. 2903.11(A)(1); two counts of felonious assault

in violation of R.C. 2903.11(A)(2); discharge of firearm on or near prohibited premises in

violation of R.C. 2923.162(A)(3); tampering with evidence in violation of R.C. 2921.12(A)(1);

and having a weapon while under disability in violation of R.C. 2923.13(A)(2).

{¶51} Gordon’s arguments focus on the sufficiency of the evidence that he — rather

than a black male with a red shirt — shot Nieves. As this assigned error only concerns the
shooter’s identity, we need not analyze every element of each offense. Upon review of the

record, particularly Holsey’s identification of Gordon as the shooter coupled with the

surveillance video of Gordon running from the scene, we find that the state presented sufficient

evidence that, if believed, would convince the jury of Gordon’s guilt. Accordingly, Gordon’s

first assigned error is overruled.

IV. Manifest Weight of the Evidence

{¶52} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25,

the Ohio Supreme Court addressed the standard of review for a criminal manifest weight

challenge, as follows:

The criminal manifest-weight-of-the-evidence standard was explained in

State v. Thompkins (1997), 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541. In

Thompkins, the court distinguished between sufficiency of the evidence and

manifest weight of the evidence, finding that these concepts differ both

qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that

sufficiency of the evidence is a test of adequacy as to whether the evidence is

legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence’s effect of inducing belief. Id. at 386-387, 678

N.E.2d 541. In other words, a reviewing court asks whose evidence is more

persuasive — the state’s or the defendant’s? We went on to hold that although

there may be sufficient evidence to support a judgment, it could nevertheless be

against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. “When a

court of appeals reverses a judgment of a trial court on the basis that the verdict is

against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’
 and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at

387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.

2211, 72 L.Ed.2d 652.

{¶53} An appellate court may not merely substitute its view for that of the jury, but must

find that “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.”

Thompkins at 387. Accordingly, reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.” Id.

{¶54} Gordon argues that his case is on point with State v. Williams, 8th Dist. Cuyahoga

No. 95796, 2011-Ohio-5483, in which this court reversed a murder conviction because the

defendant’s only link to the shooting was the testimony of two other participants in the

drug-deal-gone-bad who were implicated in the crime scene. Id. at ¶ 29-30. In Williams, this

court found that

the appellant was not linked to the crime or crime scene by any tangible evidence.
The only link between appellant and the shooting was the testimony of Jackson
and Jefferson. Neither Jackson nor Jefferson came forward and provided
statements to police until after DNA evidence had physically linked each of them
to the crime scene. The credibility of both of these witnesses was called into
question at trial. * * * Only after Jefferson’s DNA was tied to the crime scene,
and he was threatened with a charge of obstructing justice, did Jefferson implicate
appellant in [the] shooting.

Id. at ¶ 29.

{¶55} Similar to Gordon’s first assigned error, this argument concerns the shooter’s

identity. Of the witnesses who testified about the shooting, Holsey was the only one to identify

Gordon as the shooter. Additionally, Butler testified that Gordon told him he “just did a drill”

shortly after Nieves was shot.
 {¶56} Upon review, we find that Williams is distinguishable from the case at hand. First,

there is forensic evidence that implicates Gordon in Nieves’s shooting in that Gordon’s hands

tested positive for gunshot residue. Second, Holsey immediately identified Gordon as the

shooter, and Holsey was never implicated in this crime. Third, other neutral eyewitnesses heard

gunshots and saw a man dressed similar to Gordon at the scene and running away after the shots

were fired. Fourth, Gordon is caught on video running away from the scene immediately after

the shooting. Fifth, Gordon is caught on video talking to Holsey and Nieves immediately prior

to the shooting, which corroborates Holsey’s testimony that he had arranged to buy marijuana

from Gordon. Sixth, Nieves’s autopsy report concludes that he died from one bullet that entered

the back of his neck on the left side and exited through his head and face. The autopsy also

confirmed that the gun was fired more than four feet from Nieves. This is consistent with

Holsey’s and Sobczyk’s testimony that the shooter was firing as Nieves was driving away, which

was the position Gordon was in when the shooting occurred.

{¶57} We cannot say that the jury lost its way in convicting Gordon of murder, felonious

assault, discharging a firearm in a prohibited area, and having a weapon while under disability.

{¶58} Additionally, the evidence shows that no gun was ever found. Furthermore, when

police questioned Gordon at the house on W. 41st Street not long after the shooting, Gordon was

not wearing the orange shirt that he had on when he was running from the scene. That shirt was

never recovered. Accordingly, we cannot say that the jury lost its way in convicting Gordon of

tampering with evidence.

{¶59} Gordon’s second assigned error is overruled.
V. Admissibility of Evidence

{¶60} “The admission or exclusion of relevant evidence rests within the sound discretion

of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). Pursuant to

Evid.R. 401, relevant evidence is “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Relevant evidence is not admissible, however, “if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Evid.R. 403(A). “Where evidence has been improperly

admitted in derogation of a criminal defendant’s constitutional rights, the admission is harmless

‘beyond a reasonable doubt’ if the remaining evidence alone comprises ‘overwhelming’ proof of

defendant’s guilt.” State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983).

A. Authentication of the Jail Call

{¶61} Before evidence is deemed admissible at trial, it must be authenticated. Ohio law

“provides a liberal standard for the authentication of evidence.” State v. Inkton, 8th Dist.

Cuyahoga No. 102706, 2016-Ohio-693, ¶ 73. Pursuant to Evid.R. 901(A), authentication “is

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

proponent claims.” Specifically, Evid.R. 901(B)(5) states that a voice may be authenticated or

identified, “whether heard firsthand or through mechanical or electronic transmission or

recording, by opinion based upon hearing that voice at any time under circumstances connecting

it with the alleged speaker.”

{¶62} In the case at hand, Det. Sandoval testified about a phone call Gordon allegedly

made from jail. The entirety of this direct examination testimony follows:
Q: Detective, are you familiar with a system in place in the county jail to
monitor phone calls made by inmates from the county jail?

A: Yes.

Q: And can you give us a summary of how that system works as far as PIN
numbers, identifiers like that and how calls are made?

A: Inmates when they arrive at county jail are given specific numbers to them
to make phone calls. And I think they have to have money on — either to
make calls straight out, they would have to have money reserved for those
calls.

Q: And each inmate is given a unique PIN number, correct?

A: Yes.

Q: And that’s not just for their calls, it’s for anything that they would like to
purchase in the jail their assigned an SO number; isn’t that right?

A: That’s correct an SO number, yes.

Q: And when those calls are made, are you aware that at the beginning of
each call there’s a warning read by the system that the call will be
recorded?

A: Yes.

Q: I would then like to play for you * * * State’s Exhibit 335. And I’d like
for you to * * * listen to the beginning first and then we’ll skim ahead to
the pertinent parts. Okay?

***

Q: Did you hear the defendant identify himself at the beginning of this call?

A: At the beginning of the call they have the greeting and part of the greeting
is they advise you this call is from — and they fill it in with their name,
which was Neeko, and then it continued to advise you about it being
monitored and recorded.

***

Q: Were you able to hear the defendant in that clip talking about ditching the
gun?
 A: Yes.

{¶63} On appeal, Gordon argues that this call was improperly admitted into evidence for

two reasons: first, Det. Sandoval did not properly authenticate the call; and second, the content

of the call was prejudicial. Gordon argues that the detective did not testify that he was familiar

with or that he recognized Gordon’s voice; rather, “he answered a leading question in the

affirmative.” Gordon next argues that the call was about a hypothetical and it had no relation to

the facts of this case.

{¶64} Upon review, we find that the call was improperly authenticated. “To be

admissible, a tape recording must be authentic, accurate, and trustworthy.” State v. Were, 118

Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 109. Det. Sandoval did not expressly

identify Gordon as the caller. Rather, he testified that the caller identified himself as “Neeko” at

the beginning of the call. Det. Sandoval also testified that he was “present” for the “sit down

interview” of Gordon at the police station, approximately ten months before trial. According to

the record, this is the only time Det. Sandoval heard Gordon speak. Furthermore, although Det.

Sandoval testified about the basic process for making calls from the jail, he did not testify that

the call played for the jury in the case at hand originated from Gordon’s PIN number.

Additionally, Det. Sandoval did not testify as to the accuracy of the jail call process.

{¶65} This court has previously held a jail call was properly authenticated when the

following testimony was presented at trial: the victim testified that she received the calls in

question from the defendant and identified his voice on the recording; and two employees from

the Cuyahoga County Sheriff’s Office testified about how jail calls are recorded and, particular to

Christopher Thompson’s case, how they downloaded calls made from Thompson’s inmate
number and calls that Thompson made using another inmate’s account. State v. Thompson, 8th

Dist. No. 96929, 2012-Ohio-921, ¶ 7-13. See also State v. St. Anthony Ford, 8th Dist. Cuyahoga

No. 105698, 2018-Ohio-2128, ¶ 52 (“[W]e are concerned with the manner in which the state laid

the foundation for the recordings of Ford’s jail-cell calls. Nevertheless, we cannot conclude that

but for the introduction of the jail-cell calls, the result of the proceedings would have been

different.”).

{¶66} Turning to the contents of the call, we find that the error in admitting evidence that

was not properly authenticated was harmless. We cannot say that, but for the introduction of

this jail call, Gordon would not have been convicted of killing Nieves. Pursuant to Crim.R.

52(A), “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded.” This court has held that a “nonconstitutional error is harmless when there is

substantial other evidence to support the guilty verdict.” State v. Ceron, 8th Dist. Cuyahoga No.

99388, 2013-Ohio-5241, ¶ 97.

{¶67} After reviewing the record, we find substantial evidence to support Gordon’s

convictions. Holsey, who knew Gordon, identified Gordon as the shooter. Two eyewitnesses

saw a man dressed similarly to Gordon run away from the scene. Gordon was captured on video

running away from the scene. Forensic evidence shows gunshot residue on Gordon’s hands

when he was arrested approximately two hours after the shooting. Butler testified that Gordon

said he “just did a drill” after the shooting.

{¶68} Accordingly, we conclude that the jail call was not unfairly prejudicial, and

Gordon’s third assigned error is overruled.

B. Authentication of the Facebook Photograph
 {¶69} The leading case in Ohio regarding the authentication of electronically stored

information from social networking websites appears to be State v. Gibson, 6th Dist. Lucas Nos.

L-13-1222 and L-13-1223, 2015-Ohio-1679, which this court has cited with approval in State v.

Inkton, 8th Dist. Cuyahoga No. 102706, 2016-Ohio-693, ¶ 85-86.

Facebook users often “post content — which can include text, pictures, or videos
— to that user’s profile page” delivering it to the user’s subscribers. These posts
often include information relevant to a criminal prosecution: “party admissions,
inculpatory or exculpatory photos, or online communication between users.”
Authentication concerns arise in regard to printouts from Facebook “because
anyone can create a fictitious account and masquerade under another person’s
name or can gain access to another’s account by obtaining the user’s username
and password,” and, consequently, “[t]he potential for fabricating or tampering
with electronically stored information on a social networking” site is high.

(Citations omitted.) Gibson at ¶ 35.

{¶70} In the case at hand, over Gordon’s objection, the trial court admitted a photograph

that Det. Sandoval testified he “came into the possession of” from the Facebook page of Yonko

Boolin. Det. Sandoval testified that the home screen of Gordon’s cell phone has the name

“Yonko” on it. The picture, which is undated and contains no text or writing, shows two black

males, one with a gun in the waistband of his jeans and the other holding what appears to be a

shotgun in front of his face. Det. Sandoval testified that “Neeko Gordon has — appears to be a

shotgun in his right hand * * *.” On cross-examination, Det. Sandoval further testified about the

photo as follows:

Q: Do you see anything on here that would say what date this was taken on?

A: No.

***

Q: So we don’t know when it was taken, right?

A: I cannot tell you. Correct.
 Q: And we don’t know whether this gun is even real, do we?

A: No.

Q: And we don’t know who this guy is, do we?
A: I don’t know him.

{¶71} There is no evidence that Gordon has a Facebook page using the name Yonko

Boolin. There is no evidence about who retrieved this photo or when it was retrieved. There is

no evidence that Gordon is one of the men in the photograph. Upon review, we find that the

state failed to present evidence to properly authenticate this photograph. Compare State v.

Yates, 8th Dist. Cuyahoga No. 96774, 2012-Ohio-919, ¶ 36 (finding that a MySpace.com

photograph was properly authenticated when “the state presented a representative from

MySpace.com that testified as to the creation of the MySpace account [and] testimony from a

witness [identified] on the MySpace page as being a friend of Yates, that this was Yates’s

MySpace account”).

{¶72} Furthermore, we find that this photograph was improperly admitted as “other acts”

evidence. The state did not suggest that one of the guns in the photograph was the murder

weapon in the instant case. The photograph tends to show that Gordon is the type of person who

has a gun, and therefore, it is probable to conclude that he acted in conformity therewith

concerning the shooting of Nieves on the night in question. Under Evid.R. 404(B), evidence is

inadmissible for this purpose.

{¶73} Despite finding that the trial court erroneously admitted the photograph, we must

determine if the error was harmless. As analyzed previously in this opinion, this court

concluded that there was substantial independent evidence of Gordon’s guilt. Therefore, we
cannot say that the admission of photograph was prejudicial to Gordon. Although the court

erred by admitting this photograph, we find that the error was harmless.

{¶74} Accordingly, Gordon’s fourth assigned error is overruled.

C. Other Acts Testimony that Gordon “Carries a Revolver”

{¶75} Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” See also R.C.

2945.59.

{¶76} In State v. Crosby, 186 Ohio App.3d 453, 928 N.E.2d 795, 2010-Ohio-1584, ¶

14-18 (8th Dist.), this court found that the trial court improperly admitted testimony about the

defendant being known to carry a gun in general.

[T]he testimony about defendant being seen with a gun bears no * * *
relationship to the offenses he was convicted of. Four witnesses testified that
defendant was known to carry a gun. The first witness testified that he knew
defendant to carry a 9 mm gun; however, he had not seen defendant for two years
prior to the night of the offense, and he did not see defendant with a gun on the
date in question.

The victim and another witness testified that they knew defendant to carry a 9 mm
gun; however, no mention was made of any time-frame or specific incidents when
defendant was seen with a gun. The fourth witness testified that he has known
defendant to carry a gun, but not a 9 mm. Other than the victim’s testimony that
defendant shot him, nobody testified that they saw defendant with a gun on or
near the date of the offense.
Furthermore, the weapon was not recovered in the instant case. Thus, the other
acts evidence does not link defendant to the gun used to shoot the victim, and was
therefore improperly admitted.

Id. at ¶ 14-16.
 {¶77} The Crosby court concluded that the admission of this testimony was harmless

error under Crim.R. 52(A), because there was other credible evidence to support the defendant’s

convictions. Id. at ¶ 17-18.

{¶78} In the case at hand, Butler testified as follows about Gordon carrying a gun:

Q: Does Neeko carry a revolver?

A: Yes.

Q: When did you see him with it prior to the shooting?

***

A: Like I told him1 two days before.

{¶79} We find that the case at hand is similar to Crosby. The gun was never recovered

and there is no evidence other than speculation that a revolver was used to kill Nieves. “Federal

and Ohio courts have recognized the introduction of other weapons evidence — i.e., irrelevant

evidence of weapons unrelated to the charges — as error.” State v. Thomas, 152 Ohio St.3d 15,

2017-Ohio-8011, 92 N.E.3d 821, ¶ 36. The Thomas court noted that “[e]rror in admitting other

weapons evidence falls generally into one of two categories: harmless error or prejudicial error

requiring reversal.” Id. at ¶ 38. “Cases in which courts have deemed error in the admission of

other weapons evidence to be harmless generally involved overwhelming independent evidence

of guilt.” Id. at ¶ 39.

{¶80} As analyzed previously in this opinion, this court concluded that there was

substantial independent evidence of Gordon’s guilt; therefore, we find Butler’s other weapons

testimony to be harmless. Accordingly, Gordon’s sixth assigned error is overruled.

1
It is unclear from the record who “him” is. Butler previously testified that he knew
Gordon to carry a gun sometime in August 2016.
VI. Flight Jury Instruction

{¶81} “A trial court should give a proposed jury instruction if it is a correct statement of

the law and is applicable to the facts of the particular case.” State v. Rose, 8th Dist. Cuyahoga

No. 89457, 2008-Ohio-1262, ¶ 18. “Flight from justice means some escape or affirmative

attempt to avoid apprehension.” State v. Wesley, 8th Dist. Cuyahoga No. 80684,

2002-Ohio-4429, ¶ 19. To warrant a flight instruction, there must be evidence “that the

defendant took affirmative steps to avoid detection and apprehension beyond simply not

remaining at the scene of the crime.” State v. Johnson, 8th Dist. Cuyahoga No. 99715,

2014-Ohio-2638, ¶ 109. Whether to issue a particular jury instruction is reviewed for an abuse

of discretion. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578.

{¶82} In the case at hand, it is undisputed that Gordon fled the scene, because he is

caught on camera doing so. On appeal, Gordon argues that “the evidence merely established

that appellant left the scene and went home.” However, the surveillance video shows Gordon

running down the street and through an alley seconds after Nieves’s white Corolla is seen driving

through the intersection and shots were fired. This is more than “merely” going home.

Furthermore, the court gave the jury a limiting instruction as follows:

You are instructed that the fact that the defendant fled the scene does not raise a

presumption of guilt but it may tend to indicate the defendant’s consciousness of

guilt. * * * [I]f you find that some other motive prompted the defendant’s

conduct, or if you are unable to decide what the defendant’s motivation was, then

you should not consider the evidence for any purpose; however, if you find that

the facts support the defendant engaged in such conduct and if you decide that

defendant was motivated by a consciousness of guilt, you may but are not required
 to consider that * * * evidence in deciding whether the defendant is guilty of the

crimes charged.

{¶83} Upon review, we that the evidence does not weigh in favor of Gordon merely

running away from gunfire, because all of the witnesses testified that there was only one black

male crouching by the fence and coming toward the white car with his arm pointed when the

shots were fired. Furthermore, there was only one black male running from the scene after the

shots were fired. Accordingly, we find that the court did not abuse its discretion by instructing

the jury regarding flight. Gordon’s fifth assigned error is overruled.

{¶84} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of Common

Pleas to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, J., CONCURS;
EILEEN A. GALLAGHER, A.J., CONCURS
WITH ATTACHED OPINION
EILEEN A. GALLAGHER, A.J., CONCURRING WITH SEPARATE OPINION:

{¶85} I concur with the judgment of my learned colleagues but write separately to address

the admissibility of testimony related to the phone calls that emanated from the Cuyahoga

County jail in this matter and that have been attributed to the defendant.

{¶86} In this case, the state elicited testimony from a Cleveland Police Department

homicide Det. Joselito Sandoval, as to the Cuyahoga County jail telephone call system. Det.

Sandoval is not an employee of the Cuyahoga County Sheriff’s Department that has control of

the jail operations. He provided testimony as to the telephone monitoring system utilized in the

Cuyahoga County jail along with testimony regarding a call made by a person who identified

himself as “Neeko.”

{¶87} It is my opinion that an employee of the Cuyahoga County Sheriff’s Department

should have provided testimony as to the telephone system utilized in the county jail. It certainly

would not have been onerous to have a representative of the sheriff’s department testify as to the

process and then the content of that phone call.

{¶88} The state frequently uses law enforcement officers from municipalities to provide

testimony as to Cuyahoga County jail operations, and I find it to be troubling. In this case, the

error is harmless but in the future, it may not be.