A three-judge appellate panel in the Seventh District recently affirmed the judgment of the Mahoning County Court of Common Pleas. The judges ruled that Shawn Green was properly convicted on charges of felonious assault, assault, resisting arrest, and possession of cocaine. Green challenged the trial court’s decision to admit video surveillance footage of the incident leading to his arrest.
According to the factual and procedural history provided by the Seventh District, Officers Quinn and Mulligan responded to a call about an armed man who was fighting with two females in a bar in Youngstown on March 15, 2012.
The officers entered the bar and approached Green from two different directions. Quinn testified that she could see a “bulge” in Green’s pocket and believed it was a firearm. As she approached, Quinn reached for the suspected gun but Green turned and punched her in the throat, causing her head to hit the wall behind her.
Quinn tried to subdue Green with her Taser as she was falling but accidentally hit Mulligan. Quinn passed out and when she regained consciousness she said she saw Mulligan struggling to control Green. Mulligan testified that, due to his struggle with Green, he did not initially realize that he had been struck by the Taser. Additional officers eventually responded to the scene and, together, they were able to subdue Green.
The bulge in his pocket turned out to be marijuana, cocaine, and packaging baggies.
Officer Sweeney, who was not on the scene of the initial altercation, was assigned to investigate the assaults.
He contacted David Fusillo, the co-owner of the bar, who provided access to the surveillance footage gathered from the six cameras installed in the establishment.
The footage was copied to a thumb drive and Fusillo and Sweeney testified it had not been altered in any way.
Fusillo also testified the footage he was asked to authenticate at trial completely and accurately reflected the video he saw for the first time in his office with the investigating officer.
He noted that the footage did not accurately reflect daylight savings time, so the timestamp was one hour off.
After the jury returned guilty verdicts on all four counts, Green was sentenced to an aggregate term of 10 years in prison.
Upon appeal, Green argued that the trial court erred when it admitted the surveillance footage without proper authentication.
“Appellant contends that the testimony offered by Officer Sweeney and Mr. Fusillo was insufficient to authenticate the video footage of the incident because neither man actually witnessed the incident in real time and therefore, could not testify that the footage reflected a fair and accurate depiction of events,” wrote Judge Cheryl Waite for the court of appeals.
The panel of judges held that the admission of evidence is generally within the sound discretion of the trial court.
Waite noted that Fusillo testified from personal knowledge about the installation of the surveillance system, the positioning of the cameras and the accuracy of the system.
“No expert testimony is required to substantiate the reliability of a video surveillance system,” wrote Waite. “Hence, the testimony offered by Mr. Fusillo was adequate to introduce the video footage as a silent witness.”
The person authenticating the footage did not actually have to witness the events, according to the appellate panel.
Fusillo was simply required to verify that the evidence “is what it purports to be.”
Green’s single assignment of error was subsequently overruled and the judgment of the trial court was affirmed with Judges Gene Donofrio and Joseph Vukovich concurring.
The case is cited State v. Green, 2014-Ohio-648.