Moshos v. Knab

• Decision Date: 15 February 2012
• Docket Number: CASE NO. 2:11-CV-663
• Parties: DANIEL M. MOSHOS, Petitioner, v. ROBIN KNAB, WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DANIEL M. MOSHOS, Petitioner,

v.ROBIN KNAB, WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:11-CV-663

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

February 15, 2012

JUDGE MARBLEY MAGISTRATE JUDGE KING

ORDER and

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the Petition, Doc. No. 1, Respondent's Return of Writ, Doc. No. 7, Petitioner's Traverse, Doc. No. 10, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing, made in the Petition and in the Traverse, is DENIED.

FACTS and PROCEDURAL HISTORY

The Ohio Twelfth District Court of Appeals summarized the facts and procedural history of this case as follows:

On July 26, 2007, C.J, a 52-year-old married mother of two, filed a police report with the Wilmington Police Department alleging that appellant, a physician with Corporate Health Services (Corporate Health) located in Wilmington, Ohio, exposed his private parts and asked her to perform oral sex during a follow-up examination conducted at his office. On August 27, 2007, following a police investigation, appellant was arrested and charged with public indecency.

On September 1, 2007, news of appellant's arrest for public indecency was reported in the local newspaper.

Several days later, on September 5, 2007, Detective Josh Riley of the Wilmington Police Department received a call from an anonymous woman who stated that she "had the same thing happen [to her]," and that "the victim from the case [they] filed charges on was telling the truth." Upon further police investigation, which included identifying the anonymous woman as D.V., a 44-year-old single mother, appellant was indicted on two counts of gross sexual imposition and one count of attempted rape.

After the trial court denied his motion to suppress and motion in limine, and following a four-day jury trial, appellant was found guilty on all counts and sentenced to serve a total of three years in prison.

State v. Moshos, No. CA2009-06-008, 2010 WL 2010 WL 703242, at *1 (Ohio App. 12th Dist. March 1, 2010). Petitioner filed a timely appeal, raising the following assignments of error:

1. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR SEVERANCE OF COUNT ONE OF THE INDICTMENT FROM COUNTS TWO, THREE AND FOUR AND AS A RESULT VIOLATED THE OHIO RAPE SHIELD ACT IN § 2907.02 AND § 2907.05, OHIO REVISED CODE § 2945.59 AND THE APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS PURSUANT TO THE OHIO AND UNITED STATES CONSTITUTIONS.

2. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS AND PERMITTED INCRIMINATING EVIDENCE TO BE USED AT TRIAL

WITHOUT PROPER AUTHENTICATION, ESTABLISHMENT OF CHAIN OF CUSTODY, AND THE GENUINE QUESTION AS TO ITS AUTHENTICITY HAD BEEN RAISED IN VIOLATION OF THE OHIO RULES OF EVIDENCE, APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS PURSUANT TO THE OHIO AND UNITED STATES CONSTITUTIONS.

3. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY DENYING HIS ABILITY TO CROSS EXAMINE ONE OF THE ALLEGED VICTIMS REGARDING HER TRUTHFULNESS IN VIOLATION OF EVIDENCE RULE 608(B), OHIO EVIDENCE RULE 404(A)(2), THE CONFRONTATION CLAUSE, AND THE OHIO AND UNITED STATES CONSTITUTIONS.

4. THE EVIDENCE WAS INSUFFICIENT TO FIND THE APPELLANT GUILTY AND THUS, APPELLANT IS ENTITLED TO A JUDGMENT OF ACQUITTAL AS TO COUNTS ONE THROUGH FOUR PURSUANT TO OHIO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE.

5. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

State v. Moshos, 2010 WL 703242, at *1. On March 1, 2010, the appellate court affirmed the judgment of the trial court. Id. On July 21, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Moshos, 126 Ohio St.3d 1513 (2010).

One year later, on July 21, 2011, Petitioner filed the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the Constitution of the United States based upon the following grounds:

1. Trial court violated Petitioner's constitutional right to due process as provided for in the 14th Amendment when it failed to grant Petitioner's motion to suppress and permitted the introduction of information to the jury which was inadmissable as evidence and lacked reliability and integrity.

2. Trial court violated Petitioner's constitutional right to due process as provided for in the 14th Amendment, and such violation was not cured and rendered harmless, when it failed to grant Petitioner's retrial motion to sever the counts with which Petitioner was charged.

3. While any single evidentiary violation on the part of the trial court may not be cognizable in a petition for habeas corpus, the cumulative effect of the trial court's evidentiary and due process errors had a substantial and injurious effect or influence in determining the jury's verdict, giving rise to habeas relief.

4. The Petitioner is entitled to an evidentiary hearing on these matters.

Respondent contends that Petitioner's claims are without merit.

CLAIM ONE

In claim one, Petitioner alleges that he was denied a fair trial due to admission of an audio recording of a conversation between himself and C.J., one of the alleged victims. The state appellate court rejected this claim, reasoning as follows:

Appellant argues that the trial court erred by allowing the state to play to the jury a digital audio recording of an alleged conversation between C.J. and appellant because the recording "could not be authenticated," and therefore, was "clearly not the best evidence." We disagree.

A trial court's decision to admit or exclude evidence will not be reversed by a reviewing court absent an abuse of discretion. State v. Craft, Butler App. No. CA2006-06-145, 2007-Ohio-4116, ¶ 48. An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, ¶ 130. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. State v. Pringle, Butler App. Nos. CA2007-08-193, CA2007-09-238, 2008-Ohio-5421, ¶ 17.

To be admissible, an audio recording must be authentic, accurate, and trustworthy. State v. Were, 118 Ohio St.3d 448, 890 N.E.2d 263, 2008-Ohio-2762, ¶ 109; State v. Coleman (1999), 85 Ohio St.3d 129, 141, 707 N.E.2d 476. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by introducing "evidence sufficient to support a finding that the matter in question is what its proponent claims." Evid.R. 901(A); State v. Bettis, Butler App. No. CA2004-02-034, 2005-Ohio-2917, ¶ 26. The "sufficient to support a finding standard" is not rigorous, and the threshold of admissibility articulated in it is low. State v. Steele, Butler App. No. CA2003-11-276, 2005-Ohio-943, ¶ 115, citing State v. Easter (1991), 75 Ohio App.3d 22, 25, 598 N.E.2d 845. In turn, because "conclusive evidence as to authenticity and identification need not be presented to justify allowing evidence to reach the jury," the evidence establishing authenticity need only be sufficient to afford a rational basis for a jury to decide that the evidence is what its proponent claims it to be. State v. Bell, Clermont App. No. CA2008-05-044, 2009-Ohio-2335, ¶ 17, 30.

Turning to the facts of this case, in order to establish that the digital audio recording was what the state claimed it to be, namely a recording of a conversation between C.J. and appellant, it was not required to "prove beyond any doubt that the evidence is what it purports to be." Bell at ¶ 30, quoting State v. Aliff (Apr. 12, 2000), Lawrence App. No. 99CA8, 2000 WL 378370 at *9. Instead, the state needed only to demonstrate a "reasonable likelihood" that the recording was authentic. Bell at ¶ 30. Such evidence may be supplied by the testimony of a witness with knowledge. Evid.R. 901(B)(1); State v. Brantley, Butler App. No. CA2006-08-093, 2008-Ohio-281, ¶ 34.

At trial, C.J. testified that she agreed to "wear a wire" and participate in a "covert audio recording" in order to elicit incriminating statements from appellant during her follow-up examination at his Corporate Health office. C.J. then testified that she listened to the recording, that she was able to clearly identify herself and appellant in the recording, that the recording contained no additions, omissions, or deletions, and that listening to it "gave [her] the creeps." When asked if the digital audio recording was a "fair and accurate representation" of the conversation she had with appellant that day, C.J. responded affirmatively. In addition, and in further explaining the tape's accuracy and authenticity, C.J. testified that the recording was "so accurate" that she could "see him doing it again," and that hearing appellant's voice "on that tape [was] like reliving it again."

In ruling on the admissibility of the digital audio recording, the trial court found that it was properly "authenticated by testimony of a witness who has knowledge that the tape is what it is claimed to be." We find no error in the trial court's decision. As noted above, C.J., a witness with knowledge, provided extensive testimony regarding the authenticity of the digital audio recording. See, e.g., Were, 2008-Ohio-2762 at ¶ 109, 118 Ohio St.3d 448, 890 N.E.2d 263; State v. Nelson (Nov. 21, 1997), Greene App. No. 96CA 134, 1997 WL 822673 at *2; State v. Hall (May 10, 1995), Hamilton App. No. C-940277, 1995 WL 276716 at *2. Therefore, as the digital audio recording was properly authenticated, appellant's . . . assignment of error is overruled.

State v. Moshos, 2010 WL 703242, at...