Fifth District Summary: Week of December 15, 2014

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State of Ohio v. Zachary W. Heiden: Zachary W. Heiden was found guilty of conspiracy to commit aggravated robbery, conspiracy to commit aggravated burglary, and conspiracy to commit theft of drugs. On appeal he argued several assignment of errors: 1) The trial court erred by allowing cell phone records to be admitted into evidence without being properly authenticated in violation of the hearsay rule and the confrontation clause; 2) The trial court erred by admitting incrimination out-of-court statements by an informant who did not testify at trial; 3) The failure of the prosecution to timely provide discovery deprived him of a fair trial; 4) The conduct of the prosecution and the trial court’s refusal to appoint a special prosecutor deprived him of a fair trial; 5) The judgment of the trial court is not supported by sufficient, credible evidence; and 6) The judgment of the trial court is against the manifest weight of the evidence.

The facts presented by the government at trial indicated three men committed a home-invasion robbery of a known drug dealer, Scheffer. When the men left the drug dealer’s house they drove a Saturn automobile. The drug dealer chased the men in his car, catching up with them and rear-ending their car. During the chase, one of the occupants pointed a gun at Scheffer. Scheffer called 911 from his car.

Responding officers traced the tire tracks from the Saturn to the home of Gavin and Danna Shadwick. They also determined that the automobile belonged to their son, Tyler. The officers eventually determined the four men involved in the robbery to be Tyler Shadwick, Ryan Beach, Skeet Shaw, and Scott Hines, all of which were prosecuted and convicted. The officers’ investigation also pointed to Appellant’s, Zachary W. Heiden, involvement in the planning of the robbery.

The Fifth District found that the first and third assignments of error raised common and interrelated issues, and addressed the arguments together. Mr. Heiden’s counsel objected to the change in format of cellphone records from the previous disc format to a paper format. He also objected to the admission of the cell phone records, alleging Douglas Cutler, the employee of Verizon, did not qualify as a records custodian; rather, but rather he was merely an account representative. The prosecution, however, asserted that they were properly admitted because they were business records and not testimonial.

In order for evidence to be considered within the business records exception, a business record must 1) be one regularly recorded in regularly conducted activity, 2) have been recorded at or near the time of the transaction, 3) have a foundation laid by the ‘custodian’ of the record or by some ‘other qualified witness’.

The Fifth District maintained that Doug Cutler provided sufficient testimony to show that he was the custodian of the records representing Verizon Wireless and provided records produced in the normal course of business. In regards to the change in format, the Fifth District found that the trial court properly admitted the paper format because it contained all the information contained on the disc and was merely printed out to make it more accessible to the jurors. Additionally, each witness presented at trial testified to the cell phone records attributed to them relative to the times and circumstances as inquired in their direct examination; and the trial court admitted the exhibits, reserving the defense counsel’s objection should he prove discrepancies in the evidence, which he did not.

In the second assignment of error, Mr. Heiden argued that the trial court erred in allowing the State to introduce statements by an informant who did not testify at trial. Amber Feltner went to Mount Gilead Police Department to give information about what happened the day after the home invasion. An officer testified that she claimed Skeet Shaw and Ryan Beach had been in contact with her, and were trying to get her to sell marijuana that had been taken from the home invasion. She also told the officer that Zach Heiden was mainly responsible for planning the invasion. Before that point, the officer had not heard of Mr. Heiden.

At trial, Edmund “Skeet” Shaw testified to his involvement in the planning of the robbery. Scott Hines testified he planned and carried out the robbery with Skeet Shaw and Ryan Beach and that Tyler Shadwick drove the car. Ryan Beach testified to his involvement in planning and commission along with Shaw, Hines, and Shadwick. Both Ryan Beach and Skeet Shaw testified to Amber’s involvement following the aggravated robbery and prior to their arrest in encouraging them to delete names and numbers from their phones. Tyler Shadwick testified Amber Feltner was his spouse at the time of the incident and that she worked as a confidential informant, and was trying to gain information about the crime. He also testified he believed Ryan Beach received his information from the appellant, Zachary Heiden.

The Fifth District found that the testimony presented at trial and the cell phone records presented as evidence connected Mr. Heiden to the coconspirators. The evidence also sufficiently indicated Amber Feltner was a conspirator in the events to which Mr. Heiden was alleged to have been a coconspirator. The record indicated a number of individuals who were involved in the commission of the offense including Amber Feltner. Accordingly, the Fifth District held that the trial court did not err in ruling that the statements presented at trial were admissible as statements of a coconspirator.

The Fifth District overruled the fourth assignment of error, which asserted that the conduct of the prosecutor and the trial court’s refusal to appoint a special prosecutor deprived Mr. Heiden of a fair and impartial trial. Specifically, Mr. Heiden filed a motion for a special prosecutor because of a confrontation that occurred between defense counsel and the prosecutor outside the presence of the jury and outside the courtroom setting or proceedings. The trial court dismissed the matter, and the defense counsel did not move for mistrial. The Fifth District found that the argument between the prosecutor and defense counsel did not have any effect on the outcome of the trial or its proceedings.

The Fifth Districted addressed both the fifth and sixth assignments of error together, which maintained that Mr. Heiden’s conviction was against the manifest weight and sufficiency of the evidence. The Court found that the cell phone records introduced at trial and the testimony presented by the witnesses were sufficient to connect Mr. Heiden with the other co-conspirators in committing aggravated burglary, aggravated robbery, and theft of drugs.

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