State v. Robinson

[Cite as State v. Robinson, 2021-Ohio-2871.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-20-20

v.

SHAWN LEE ROBINSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court
Trial Court No. 2020 CR 8

Judgment Affirmed

Date of Decision: August 23, 2021

APPEARANCES:

Rob C. Wiesenmayer, II for Appellant

Joshua A. Muhlenkamp for Appellee
Case No. 2-20-20

ZIMMERMAN, J.

{¶1} Defendant-appellant, Shawn Lee Robinson (“Robinson”), appeals the

July 22, 2020 judgment entry of conviction and September 23, 2020 judgment entry

of sentence of the Auglaize County Court of Common Pleas. For the reasons that

follow, we affirm.

{¶2} This case stems from drug-related activity occurring on October 14,

2019 at a gas station in Wapakoneta, Ohio involving the Grand Lake Task Force

(“GLTF”), a confidential informant (“CI”), and Robinson’s co-defendant, Charles

Miranda, II (“Miranda”).

{¶3} On January 3, 2020, the Auglaize County Grand Jury indicted Robinson

on one count of aggravated trafficking in drugs (methamphetamine) in violation of

R.C. 2925.03(A)(1), (C)(1)(a), a fourth-degree felony. (Doc. No. 1). On January 9,

2020, Robinson was arraigned and entered a plea of not guilty. (Doc. No. 11).

{¶4} Robinson’s case proceeded to a jury trial on July 21, 2020 wherein he

was found guilty of the single count in the indictment. (Doc. Nos. 80, 81); (July

21& 22, 2020 Tr. at 287-289, Doc. No. 130). On September 22, 2020, the trial court

sentenced Robinson to prison for a term of 18 months. (Doc. No. 94). The trial

court’s judgment entry was filed stamped on September 23, 2020. (Id.).

{¶5} Robinson filed his notice of appeal on October 22, 2020 and raises the

following three assignments of error for our review. (Doc. No. 110).

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Assignment of Error No. I

The Trial Court’s Decisions Finding The Defendant-Appellant
Guilty Was Against The Manifest Weight Of The Evidence.

Assignment of Error No. II

The Trial Court Erred In Not Granting The Defendant’s Motion
For Acquittal Pursuant To Criminal Rule 29, In That The
Evidence Of The State Of Ohio Was Insufficient For The Matter
To Have Been Submitted To The Jury.

Assignment of Error No. III

The Trial Court Erred In Allowing The Admission Of The Jail
House Phone Calls Made By The Defendant Into Evidence.

{¶6} For ease of our discussion, we will review Robinson’s third assignment

of error first, followed by his second assignment of error, and then his first

assignment of error.

Assignment of Error No. III

The Trial Court Erred In Allowing The Admission Of The Jail
House Phone Calls Made By The Defendant Into Evidence.

{¶7} In his third assignment of error, Robinson argues that the trial court

erred in admitting two telephone calls (State’s Exhibits 8 and 9) originating from

the Auglaize County Jail (“ACJ”). Specifically, Robinson asserts that Investigator

Rex Pack’s (“Pack”) testimony is insufficient to lay a foundation for and to

authenticate those exhibits under Evid.R. 901(B).

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Standard of Review

{¶8} The admission or exclusion of evidence lies within the trial court’s

discretion, and a reviewing court should not reverse absent an abuse of discretion

and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶

62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001), citing State v. Maurer, 15 Ohio

St.3d 239, 265 (1984). An abuse of discretion implies that the trial court acted

unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151,

157 (1980).

Analysis

{¶9} Evid.R. 901 “governs authentication and provides a liberal standard for

authentication of telephone calls.” State v. Reno, 4th Dist. Ross No. 04CA2759,

2005-Ohio-1294, ¶ 18, citing State v. Vrona, 47 Ohio App.3d 145, 149 (9th

Dist.1988). Evid.R. 901(A) provides that “authentication or identification” is a

condition precedent to the admissibility of evidence. This requirement is satisfied

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

proponent claims.” Evid.R. 901(A). “‘Telephone conversations are admitted where

the identity of the parties is “satisfactorily explained.””’ Reno at ¶ 18, quoting State

v. Williams, 64 Ohio App.2d 271, 274 (8th Dist.1979). “‘There is no fixed

identification requirement for all calls.’ * * * “Each case has its own set of facts.”’”

Id., quoting Vrona at 149. Circumstantial and direct evidence may be used to

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demonstrate authenticity. Williams at 274. Importantly, the threshold standard for

authentication is low under Evid.R. 901(A), and “‘does not require conclusive proof

of authenticity, but only sufficient foundational evidence for the trier of fact to

conclude that * * * [the evidence] is what its proponent claims it to be.’” Reno at ¶

18, quoting State v. Easter, 75 Ohio App.3d 22, 25 (4th Dist.1991). Evid.R. 901(B)

provides illustrations (methods) by which authentication and identification can be

achieved.

{¶10} Here, Robinson asserts two arguments: 1) that the State failed to lay

a proper foundation as to the authenticity of the jail-telephone calls, and 2) that the

voice identification of Robinson is flawed under Evid.R. 901(B)(5) because

Robinson was high at the time of his interview with Pack (evidenced by his slurred

speech), thus rendering it “compromised” and that Pack seemed unsure as to his

recollection under division (B)(5) by using the word “think” during cross-

examination. (Appellant’s Brief at 8-9). Consequently, we undertake a review of

the record.

{¶11} The State presented Pack as a witness to identify Robinson’s voice on

the recorded jailhouse-phone calls. (July 21 & 22, 2020 Tr. at 191). Pack testified

that he conducted an in-person interview of Robinson following his arrest. (Id. at

198); (State’s Ex. 6). After interviewing Robinson, Pack investigated Robinson’s

emails sent from the jail and listened to his jail calls. (Id.). According to Pack, he

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did not know from which inmate account the jail calls originated, but he was able

to identify Robinson’s voice in those calls based on his prior interview of Robinson.

(Id. at 204). See Evid.R. 901(B)(5). Pack discerned three separate voices on the

first jail call (one voice he identified as the recording from the jail software, one

voice was a male (Pack identified as Robinson), and one voice was an unidentified

female). (Id. at 206-212); (State’s Ex. 8). On the second call, two voices were noted

by Pack (this time both males (one he identified as Robinson and one an unidentified

male)). (Id.); (State’s Ex. 9).

{¶12} Here, Robinson does not dispute that the jail calls were made from the

ACJ or that Pack accessed them pursuant to his role with the GLTF. Rather,

Robinson disputes that it is his voice on the calls. (See Appellant’s Brief at 8-9).

As such, Robinson is arguing that the authentication and identification requirements

under Evid.R. 901 as the origination of the jailhouse calls is critical to voice

identification. We disagree.

{¶13} Under the facts presented, the underlying circumstances of the

origination of telephone calls is not determinative of the authenticity or

identification of the voices recorded during the jail call. Pack testified that he has

access to the ACJ telephone calls placed by inmates through the ACJ’s software

obviating the need to go through correctional staff to access those calls. (Id. at 210).

According to our review of the record, Pack testified that he heard Robinson’s voice

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firsthand during Robinson’s interview and later through the two recorded jail calls.

(July 21 & 22, 2020 Tr. at 206-212). See Evid.R. 901(B)(5). Compare Evid.R.

901(B)(6). Pack testified he was able to identify Robinson’s voice based on his

previous contact with Robinson. (Id.). See Evid.R. 901(B)(5). Even though,

Robinson argues that authentication required the State to present the foundational

testimony of a correctional officer (from the ACJ) to testify that the jail call was

placed under Robinson’s personal identification number (“PIN”) when the call was

initiated, we find no merit to such assertion. See Reno, 2005-Ohio-1294, at ¶ 20,

citing Evid.R. 901(B)(6) (concluding that the trial court did not abuse its discretion

in admitting a taped telephone conversation where the State presented sufficient

evidence that a law enforcement officer recognized Reno’s voice and that no

requirement exits that the State also authenticate the tape under R.C. 901(B)(6)).

Therefore, we overrule Robinson’s lack-of-foundation argument.

{¶14} Next, Robinson asserts Pack’s voice identification of him is

questionable. Specifically, Robinson suggests that Pack, on cross-examination, was

unsure as to whether it was Robinson’s voice on the jail call. In our review of Pack’s

testimony, we conclude that Pack was able to the identify Robinson’s voice in the

jail calls during direct and under cross-examination. (Id. at 204-208). Moreover,

the trier of fact (the jury) listened to State’s Exhibit 6 (Pack’s interview with

Robinson) and State’s Exhibits 8 and 9 (the two recorded jail calls) during the course

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of the trial, and after all three exhibits were admitted into evidence. (Id. at 199-212,

221-222, 226, 252-254); (State’s Exs. 6, 8, 9). Thus, Robinson’s argument goes to

the weight the jury placed on the evidence and not admissibility of the evidence

itself. See State v. Jackson, 4th Dist. Athens No. 18CA7, 2020-Ohio-7034, ¶ 26.

We must defer to the trier of fact as to the weight they placed on the credibility as

to each witnesses’ testimony. See id.

{¶15} Accordingly, we cannot conclude that the trial court abused its

discretion by determining that the appropriate foundation was laid for State’s

Exhibits 8 and 9; that those exhibits were properly authenticated; and thereafter,

admitting them into evidence.

{¶16} Accordingly, Robinson’s third assignment of error is overruled.

Assignment of Error No. II

The Trial Court Erred In Not Granting The Defendant’s Motion
For Acquittal Pursuant To Criminal Rule 29, In That The
Evidence Of The State Of Ohio Was Insufficient For The Matter
To Have Been Submitted To The Jury.

{¶17} In his second assignment of error, Robinson argues that the trial court

erred by denying Robinson’s Crim.R. 29 motion for acquittal because the State

presented insufficient evidence to support his aggravated-trafficking-in-drugs

conviction. Specifically, Robinson argues that there is insufficient evidence to

demonstrate that State proved that he had the requisite mental culpability

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(knowledge) or that Robinson played an active role (as the principal offender) in the

commission of the offense.

Standard of Review

{¶18} Because the purpose of a Crim.R. 29 motion for acquittal “is to test

the sufficiency of the evidence presented at trial,” we “review[ ] a denial of a

Crim.R. 29 motion for judgment of acquittal using the same standard that is used to

review a sufficiency of the evidence claim.” (Internal citations omitted.) State v.

Diabato, 3d Dist. Union No. 14-18-23, 2019-Ohio-3542, quoting State v. Willis,

12th Dist. Butler No. CA2009-10-270, 2010-Ohio-4404, ¶ 9, citing State v. Terry,

12ths Dist. Fayette No. CA2001-07-012, 2002-Ohio-4378, ¶ 9, citing State v.

Williams, 74 Ohio St.3d 569, 576 (1996) and State v. Moore, 3d Dist. Union No.

14-08-43, 2009-Ohio-2106, ¶ 20, citing State v. Lightner, 3d Dist. Hardin No. 6-08-

11, 2009-Ohio-544, ¶ 11, citing State v. Carter, 72 Ohio St.3d 545, 553 (1995). “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. Jenks, 61 Ohio St.3d 259

(1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4.

Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a

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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.” Id.

Analysis

{¶19} Here, Robinson was found guilty by the jury of aggravated trafficking

in drugs. (Id. at 286-289). To establish a conviction for the offense of aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(1), the State must prove that the

defendant “[1] knowingly * * * [2] [sold] or offer[ed] to sell [3] a controlled

substance or a controlled substance analog.”1 R.C. 2925.03(A)(1), (C)(1)(a). “A

person acts knowingly, regardless of purpose, when the person is aware that the

person’s conduct will probably cause a certain result or will probably be of a certain

nature.” R.C. 2901.22(B). Furthermore, “[a] person has knowledge of

circumstances when the person is aware that such circumstances probably exist.”

Id. “Knowledge can be ascertained from the surrounding facts and circumstances

in the case.” State v Anderson, 12th Dist. Fayette No. CA2008-07-026, 2009-Ohio-

2521, ¶ 28, citing State v. Lott, 51 Ohio St.3d 160, 168 (1990).

{¶20} Robinson argues that his aggravated-trafficking-in-drugs conviction is

not supported by sufficient evidence because the State failed to demonstrate that

1
The State and Robinson stipulated as to the admission of Joint Exhibit 1, which included certain paragraphs
read into the record stipulating that the methamphetamines at issue are a Schedule II controlled substance, in
the amount of 0.85 grams +/- 0.04 grams, confiscated by law enforcement on October 14, 2019, and that the
parties further stipulate as to their foundation, relevancy, authentication, chain of custody, and the expert
opinion involving those drugs. (July 21 & 22, 2020 Tr. at 100-101); (Joint Ex. 1). Thus, only the first two
elements are at issue.

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Robinson “knowingly” “[sold] or offer[ed] to sell” methamphetamines to the CI

through Miranda. We disagree.

{¶21} Robinson was indicted in terms of the principal offense under

2925.03(A)(1) and not under complicity set forth in R.C. 2923.03. (Doc. Nos. 1,

32). As such, Robinson argues that the evidence is insufficient to establish that he

was the principal offender of the offense (let alone) that he is complicit in the

commission of the offense.

{¶22} At trial the State presented two witnesses: 1) the CI and 2) Robinson’s

co-defendant, Miranda, as to Robinson’s knowledge and his role as a principal in

the “sale or offer to sell” methamphetamines. (July 21 & 22, 2020 Tr. at 134-156,

164-189). The CI testified that while he was in jail, he was approached by the GLTF

to assist them in their undercover-narcotics operations for a nominal fee of $100,

per drug buy. (Id. at 141). The CI agreed to cooperate with law enforcement and

ultimately contacted Robinson (through social media) to purchase meth. (Id. at 138-

139, 142); (See State’s Exs. 3a, 3b, 3c, 3d). The CI testified that immediately prior

to the undercover-narcotics sale, he was wired up for audio and video transmission

by law enforcement. (Id. at 142-143). The CI was then dropped off near the gas

station where Miranda and the CI agreed to meet. (Id.). At the gas station, the CI

encountered a man who identified himself as “Big Country” (Miranda) who sold

him $40 of meth. (Id. at 143-144). (See State’s Exs. 2a, 2b). The CI testified that

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Robinson gave him Miranda’s number to arrange the meeting location and complete

the drug deal. (Id. at 146-147).

{¶23} On cross-examination, the CI testified that he is a “drug doer” not a

“drug dealer”. (Id. at 148). He testified that he knew that Robinson used meth and

would supply a drug dealer. (Id.). Just prior to the arranged drug transaction, the

CI testified that Robinson sent him a Facebook message stating: “I got my dude

ready”, which the CI understood to mean Robinson’s drug dealer. (Emphasis

added.) (Id. at 149-150). The CI testified he purchased drugs from Miranda three

separate times. (Id. at 150).

{¶24} Next, the State offered the testimony of Robinson’s co-defendant

Miranda. (Id. at 162, 164). Miranda testified he goes by the nickname “Big

Country”, and that, he is presently under felony indictment arising out of Auglaize

County for three counts of drug trafficking in relation to the drug transaction with

the CI. (Id. at 165-166). Miranda testified that he knows Robinson and identified

him as the defendant in open court. (Id. at 166-167). According to Miranda on

October 14, 2019 he awoke early and drove Robinson to Buckland, Ohio between

the hours 4:00-5:00a.m. (Id. at 167). Once back at his house, Miranda found a bag

of meth on his table, which belonged to Robinson. (Id. at 169). Miranda testified

that he contacted Robinson through Facebook Messenger to tell him he left his bag

of meth at his house. (Id. at 171). According to Miranda, Robinson told him that

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there was someone in town he could contact to get rid of any of the drugs. (Id.).

Miranda testified that Robinson told him to hold his money (from the drug sale of

the meth) until they got together again, and that he could use some of the money for

gas. (Id.). Miranda testified “that’s usually how it worked. He’d give me money

for gas.” (Emphasis added.) (Id.). Thereafter, Miranda testified that he made the

drug sale with the CI at the gas station after which he put ten dollars of gas in his

car and kept the remaining $30 in his safety deposit box at his house to give to

Robinson at a later date. (Id. at 171-172).

{¶25} Even if we were to assume without deciding that the State did not meet

its burden as to a “sale” of drugs by Robinson, we nonetheless conclude that the

State met its burden in establishing Robinson’s knowledge of and participation in

an “offer to sell” drugs. Here, the State clearly established Robinson’s involvement

in the marketing stage of the criminal enterprise. See State v. Patterson, 69 Ohio

St.2d 445, 447 (1982), overruled in part on other grounds.

‘Triers of fact should consider the totality of the circumstances and
decide whether, in a particular scenario, there is sufficient evidence to
prove beyond a reasonable doubt that the accused has knowingly
offered to sell a controlled substance. For example, the dialogue and
course of conduct of the accused, as well as the nature of the goods
transferred, may be relevant to this determination.’

(Emphasis added.) State v. Ward, 3d Dist. Crawford No. 3-17-02, 2017-Ohio-8518,

¶ 16, quoting Patterson at 447. Importantly, the facts are clear that it was

Robinson’s meth in the bag that Miranda found on his table; that Robinson

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connected the purchaser of the drugs (the CI) to Miranda; that Robinson dictated

most of the details of the drug transaction; that Robinson exerted control over the

participants in the transaction itself, and that, Robinson controlled the distribution

of the drug-sale proceeds. Indeed, in our review of the record, without Robinson’s

involvement as the principal, there would have been no “offer to sell” the meth in

the first instance followed by a consummated transaction (i.e., the drug “sale”) by

Miranda to the CI.

{¶26} Moreover, Robinson’s arguments hinge on a credibility determination

as to the State’s witnesses, and as to those types of determinations, we give

deference to the trier of fact. See Jackson, 2020-Ohio-7034, at ¶ 26.

{¶27} Based on the evidence before us, we conclude that a rational trier of

fact could conclude beyond a reasonable doubt that Robinson (as the principal)

“knowingly” “offer[red] to sell” methamphetamines under his indictment.2 As

such, Robinson’s aggravated-trafficking-in-drugs conviction is based on sufficient

evidence. Accordingly, we do not conclude that the trial court erred by denying

Robinson’s Crim.R. 29 motions for acquittal and subsequently submitting his case

to the jury.

{¶28} Robinson’s second assignment of error is overruled.

2
To the extent that Robinson argued that the State was required to prove that Robinson was complicit, his
argument is specious. He was charged as the principal offender, and the evidence supports this determination.
(Doc. Nos. 1, 32). See State v. Mosley, 55 Ohio App.2d 178, 183 (10th Dist.1977) (concluding that “[t]he
crime was committed when the offer was made, not when the transaction was consummated”).

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Assignment of Error No. I

The Trial Court’s Decisions Finding The Defendant-Appellant
Guilty Was Against The Manifest Weight Of The Evidence.

{¶29} In his first assignment of error, Robinson argues that his conviction is

against the manifest weight of the evidence because the State’s witnesses (the CI

and Robinson’s co-defendant (Miranda)) were “compromised”, and since he was

not engaged in the “sale or offer to sell” methamphetamines. (Appellant’s Brief at

3-4).

Standard of Review

{¶30} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses and

determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly

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

must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380,

387 (1997), superseded by statute on other grounds, Smith, 80 Ohio St.3d at 89,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

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conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

Analysis

{¶31} Here, the evidence we summarized in our analyses of Robinson’s third

and second assignments of error supporting Robinson’s aggravated-trafficking-in-

drugs conviction is weightier than the evidence against that conviction.

{¶32} Robinson principally argues that the CI’s and Miranda’s testimonies

were not credible and that, we as the “thirteenth juror”, should determine that the CI

and Miranda offered self-serving testimony in an attempt to curry favor from the

State in their pending criminal cases. We disagree. Based on the entire record

before us, Robinson’s argument fails because the trier of fact was in the best position

to determine the credibility of witnesses, and thus, we cannot conclude that

Robinson’s aggravated-trafficking-in-drugs conviction is against the manifest

weight of the evidence.

{¶33} Accordingly, Robinson’s first assignment of error is overruled.

{¶34} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

MILLER and SHAW, J.J., concur.
/jlr

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