[Cite as State v. Gipson, 2016-Ohio-994.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-15-51
v.
DAVID T. GIPSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR20150142
Judgment Affirmed
Date of Decision: March 14, 2016
APPEARANCES:
Thomas J. Lucente, Jr. for Appellant
Terri L. Kohlrieser for Appellee Case No. 1-15-51
SHAW, P.J.
{¶1} Defendant-appellant David T. Gipson (“Gipson”) brings this appeal
from the July 9, 2015 judgment of the Allen County Common Pleas Court
sentencing Gipson to an aggregate prison term of 54 months after Gipson was
convicted in a jury trial of two counts of Domestic Violence in violation of R.C.
2919.25(A)/(D)(3), both felonies of the fourth degree, and one count of Theft from
a Person in a Protected Class in violation of R.C. 2913.02(A)/(B)(3), a felony of
the fourth degree.
Relevant Facts and Procedural History
{¶2} On April 16, 2015, Gipson was indicted for two counts of Domestic
Violence in violation of R.C. 2919.25(A)/(D)(3), both felonies of the fourth degree
due to Gipson having a prior Domestic Violence conviction, and one count of
Theft from a Person in a Protected Class in violation of R.C.
2913.02(A)(3)/(B)(3), a felony of the fourth degree. All of the incidents allegedly
took place between January 10, 2015, and January 26, 2015. The domestic
violence incidents were allegedly perpetrated against Melissa W., and the Theft
was allegedly perpetrated against Melissa’s grandmother, Roxanne.
{¶3} On April 24, 2015, Gipson was arraigned and he pled not guilty to the
charges.
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{¶4} On July 6-7, 2015, a jury trial was held. At trial the State presented
the testimony of four witnesses, which included Melissa W., the victim of the
Domestic Violence offenses. Melissa testified that Gipson resided with her at her
grandmother Roxanne’s residence during the specified period in January of 2015.
Melissa testified that she and Gipson were intimate, and that she loved Gipson.
Melissa testified that during the time that Gipson resided with her there were
multiple incidents where Gipson physically harmed her and she described those
incidents for the jury. Melissa also testified to a separate incident wherein Gipson
asked to clean her grandmother’s rings, which were valuable, and Gipson never
returned them. Carol Smith, Melissa’s Aunt by marriage, testified that she
witnessed one of the incidents of Gipson striking Melissa, and she also testified as
to the value of Roxanne’s rings based on appraisals that had been done in 1984
and 1991. Gipson’s counsel cross-examined all of the State’s witnesses but
elected not to present any evidence. The jury returned guilty verdicts on all three
charges against Gipson.
{¶5} The court then proceeded to sentence Gipson. The State
recommended that Gipson serve maximum 18 month prison terms on each of the
three charges, consecutive to each other, for an aggregate prison term of 54
months. The State based its argument primarily on Gipson’s extensive criminal
history, which included at least 8 prior felony convictions. Among those prior
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felony convictions were another Theft from a Person in a Protected Class,
specifically an elderly person, and multiple convictions for Forgery. Gipson’s
attorney gave a statement in mitigation, then Gipson himself made a lengthy
statement to the trial court. Ultimately the trial court sentenced Gipson to serve 18
months in prison on each conviction, consecutive to each other, for an aggregate
54 month prison term.
{¶6} A judgment entry memorializing Gipson’s sentence was filed July 9,
2015. It is from this judgment that Gipson appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1 THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S REQUEST FOR A DISMISSAL FOR LACK OF A SPEEDY TRIAL.
ASSIGNMENT OF ERROR 2 THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE A PELLET GUN INTO EVIDENCE THAT WAS NOT RELATED TO ANY OF THE CRIMES FOR WHICH APPELLANT WAS CHARGED.
ASSIGNMENT OF ERROR 3 APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3 OF THE OHIO CONSTITUTION.
{¶7} We elect to address one of the assignments of error out of the order in
which it was raised.
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First Assignment of Error
{¶8} In Gipson’s first assignment of error, he argues that the trial court
erred in denying his oral motion to dismiss the case based on speedy trial grounds,
which he made on the morning his trial was scheduled to begin. We disagree.
{¶9} The right to a speedy trial is guaranteed by the United States and Ohio
Constitutions. State v. Adams, 43 Ohio St.3d 67, 68 (1989). The statutory speedy
trial provisions contained in R.C. 2945.71 et seq. “constitute a rational effort to
enforce the constitutional right to a public speedy trial[.]” State v. Pachay, 64
Ohio St.2d 218 (1980), at syllabus. Pursuant to R.C. 2945.71(C)(2), a person
charged with a felony must be brought to trial within 270 days of his arrest.
However, pursuant to R.C. 2945.71(E), the “triple count provision,” each day an
accused is held in custody counts as three days for purposes of computing the
speedy trial timeframe. See also State v. Smith, 6th Dist. Lucas No. L-14-1224,
2016-Ohio-150, ¶ 8.
{¶10} In this case Gipson was indicted on April 16, 2015, and a warrant
was issued for his arrest the following day. The record indicates that the warrant
was served on Gipson on April 18, 2015. Gipson was incarcerated until the trial
date, which was July 6, 2015. Based on these dates Gipson was facially brought to
trial less than 90 days from his arrest on the charges in the indictment under the
triple count provision. In fact, after he was convicted, Gipson was given jail credit
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for 80 days served. In addition, the record indicates that there were multiple
tolling events, including Gipson’s discovery demand, a request for a bill of
particulars, and a joint agreement to continue the trial date two weeks.
{¶11} Under normal circumstances, our analysis could simply end with the
fact that Gipson was clearly brought to trial within 90 days of arrest on the charges
that are before this Court on appeal. However, Gipson claims that his speedy trial
time should have run from when he was arrested on January 24, 2015, for a related
incident against Melissa W., the victim in this case.
{¶12} According to some statements made on the record Gipson was
charged with Aggravated Menacing stemming from an incident wherein he
threatened Melissa with a pellet gun during the time that Gipson resided at
Melissa’s residence in January of 2015. At some point prior to the indictment in
this case, Gipson apparently pled guilty to the Aggravated Menacing charge, and
an unrelated Theft charge, which led to him being incarcerated for a total of 90
days. We stress that Gipson “apparently” pled guilty to the two crimes as the
parties seemed to agree that this happened and that the 90 day jail sentence was
served; however there is no documentation in the record specifically detailing
precisely what the charges were or how long Gipson was incarcerated for the
convictions.
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{¶13} Nevertheless, Gipson claims that the misdemeanor Aggravated
Menacing conviction he was arrested for on January 24, 2015, occurred in the
same time frame as the Domestic Violence charges in this case and therefore his
speedy trial time should have run from the time of the January arrest rather than
the April indictment. To support his claim, Gipson cites State v. Adams, 43 Ohio
St.3d 67 (1989), for the proposition that “ ‘[W]hen new and additional charges
arise from the same facts as did the original charge and the state knew of such
facts at the time of the initial indictment, the time within which trial is to begin on
the additional charge is subject to the same statutory limitations period that is
applied to the original charge.’ ” Adams at 69, quoting State v. Clay, 9 Ohio
App.3d 216, 218 (11th Dist.1983).
{¶14} We do not find Gipson’s reliance on Adams persuasive to the case
before us. Adams applies to a situation where new and additional charges arise
from the “same facts” as the original charge. Multiple, different acts being
committed over a period of days and weeks do not constitute the “same facts”
simply because the facts are similar and the victim is the same. Moreover, it is not
clear that the State knew of the additional domestic incidents committed by
Gipson at the time of his arrest for Aggravated Menacing. Thus we do not find
that Adams would compel a different result here.
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{¶15} For all of these reasons we cannot find that Gipson’s speedy trial
rights were violated. Accordingly, Gipson’s first assignment of error is
overruled.1
Third Assignment of Error
{¶16} In Gipson’s third assignment of error, he argues that there was
insufficient evidence presented to convict him and that even if there was sufficient
evidence presented, his convictions were against the manifest weight of the
evidence.
{¶17} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency
is a test of adequacy. Id. When an appellate court reviews a record upon a
sufficiency challenge, “ ‘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. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶
77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. Notably Gipson did not make a Crim.R. 29 motion for acquittal in this
case either at the close of the State’s evidence or at the end of the trial, therefore
1 We note that despite his claim that his speedy trial rights had been violated in this case, Gipson was given 80 days of jail credit and he does not alternatively argue on appeal that he should have been given jail credit backdated to the January 24, 2015 arrest.
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he has waived all but plain error with regard to the sufficiency of the evidence.
State v. Fugate, 2d Dist. Montgomery No. 25782, 2014-Ohio-415, ¶ 20.
{¶18} The Ohio Supreme Court has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and
‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v.
Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,
78 Ohio St.3d 380 (1997), paragraph two of the syllabus. Unlike our review of the
sufficiency of the evidence, an appellate court’s function when reviewing the
weight of the evidence is to determine whether the greater amount of credible
evidence supports the verdict. Thompkins, supra, at 387. In reviewing whether
the trial court’s judgment was against the weight of the evidence, the appellate
court sits as a “thirteenth juror” and examines the conflicting testimony. Id. In
doing so, this Court must review the entire record, weigh the evidence and all of
the reasonable inferences, consider the credibility of witnesses, and determine
whether in resolving conflicts in the evidence, the factfinder “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.
{¶19} In this case Gipson was convicted of two counts of Domestic
Violence in violation of R.C. 2919.25(A)/(D)(3), which reads,
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
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***
[D](3) Except as otherwise provided * * * if the offender previously has pleaded guilty to or been convicted of domestic violence * * * a violation of division (A) or (B) of this section is a felony of the fourth degree[.]
{¶20} Gipson was also convicted of one count of Theft from a Person in a
Protected Class in violation of R.C. 2913.02(A)(3)/(B)(3), which reads,
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(3) By deception;
[B](3) Except as otherwise provided * * * if the victim of the offense is an elderly person * * * [and] the value of the property or services stolen is one thousand dollars or more and is less than seven thousand five hundred dollars, theft from a person in a protected class is a felony of the fourth degree.
{¶21} In order to convict Gipson of the crimes as alleged at trial the State
called four witnesses including the alleged victim of the Domestic Violence
incidents, Melissa W., who testified that she was 37 years old and that she lived
with her grandmother Roxanne at 1001 Crestwood Drive in Lima. Melissa
testified that she took care of Roxanne, who was 90 years old and had dementia.
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However, Melissa testified that she did not otherwise work because she had
suffered a stroke and a head injury when she was younger.
{¶22} Melissa testified that she knew Gipson because she had been in a
relationship with Gipson’s brother previously. Melissa testified that throughout
her relationship with Gipson’s brother, and after the relationship ended, she
regularly exchanged text messages with Gipson. According to Melissa, in early
January of 2015 Gipson contacted her and she went and picked him up and
brought him back to her residence. Melissa indicated that a relationship formed
between Gipson and herself, which was intimate, and that Gipson resided with her
from the night she picked him up until Gipson was arrested on January 24, 2015.
Melissa testified that she and Gipson shared a room, that Gipson showered at her
residence, that Gipson ate there, and that she bought him toiletries. Melissa also
testified that Gipson regularly used her grandmother’s car for transportation, that
Gipson regularly used Melissa’s cell phone, and that people regularly called her
looking for Gipson. Melissa testified that she considered Gipson to be her
boyfriend and that she loved him.
{¶23} Melissa then testified to three separate violent incidents that took
place between herself and Gipson during the time Gipson resided with her.
During the first incident, Melissa indicated that Gipson was cleaning the garage
and she confronted him about her T.V. and laptop being missing. Melissa testified
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that she had asked Gipson repeatedly what had happened to the T.V. and laptop,
which went missing a few days after Gipson started staying with her. Melissa
testified that when she asked Gipson again in the garage he “got mad and slammed
[her] head against the garage wall and was choking [her].” (Tr. at 166). Melissa
testified that it was painful. (Id.) This was the first incident for which Gipson was
charged with Domestic Violence in this case.
{¶24} Melissa testified that a second incident occurred on a different day
when she was watching a movie with her grandmother in the living room. Melissa
testified that at some point she got up and went into the bedroom she shared with
Gipson. Melissa testified that Gipson had a gun and “he put it up to [her] chin and
he was choking [her] and he told [her] he was going to bust out [her] teeth and
shave [her] head and he was going to kill [her] and bury [her] somewhere and [she
would] be a missing person.” (Tr. at 169). The gun that was held to her chin was
entered into evidence and was actually identified as being a pellet gun rather than
an actual firearm.
{¶25} Melissa then testified to a third incident that occurred on yet another
day while Gipson resided with her. During this third incident, she testified that
she was folding clothes and Gipson was punching her right arm and “slapping
[her] around.” (Tr. at 169). Melissa testified that as a result of the incident she
had bruising on her arm. (Tr. at 178). Pictures of the bruising were entered into
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evidence. This incident resulted in the second Domestic Violence charge being
brought against Gipson.
{¶26} Melissa also testified about Gipson taking her grandmother
Roxanne’s rings. Melissa testified that Roxanne regularly wore jewelry, which
included multiple rings. Melissa testified that one day while Gipson was staying
with her Gipson asked to clean the rings that Roxanne wore. Melissa testified that
Roxanne gave Gipson the rings, that Gipson cleaned the rings with a toothbrush,
and that Gipson gave the rings back. However, Melissa testified that Gipson later
stated that he needed to clean the rings again because they were dirty, so he again
took them from Roxanne. Melissa testified that she was present both times when
Gipson asked to clean Roxanne’s rings. Melissa testified that the second time
Roxanne gave Gipson the rings to clean, Gipson did not return them. Melissa
testified that Gipson told her that he put the rings in acid in the garage. Melissa
testified she went and looked for the rings but she could not find them.
{¶27} The State next called Carol Smith, who was Melissa’s aunt by
marriage. Carol was also Roxanne’s daughter-in-law. Carol testified that she
went to see Roxanne almost daily due to her dementia. Carol testified that she did
Roxanne’s bills for her and helped her with her pills.
{¶28} Carol testified that one day in January of 2015 she received a call
from her daughter who indicated that Roxanne told her that the “bad man won’t
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get out” and that “he stole her rings.” (Tr. at 210). Carol testified that she went
over to Roxanne and Melissa’s residence and spoke with Roxanne, who informed
her that Gipson had taken her rings. Carol testified that she knew Roxanne wore
rings, that some of them were valuable, and that two of them were from Roxanne’s
deceased husbands. Carol testified to appraisals of two of the rings in question
indicating they were valued at $3,000 and $2,000 respectively. Carol testified
that she asked Melissa about the rings and Melissa had indicated that Gipson said
he was cleaning them. Carol testified that other jewelry was missing as well,
including other rings, but the two rings were the most valuable and the only ones
that had been appraised. Carol testified that she thoroughly searched Roxanne’s
residence and the garage for the rings but could not locate them.
{¶29} Carol also testified that she had been present during one of the
alleged Domestic Violence incidents. Carol testified she observed Gipson strike
Melissa in the arm as Melissa was folding laundry. Carol testified that Gipson
“slugged” Melissa as hard as he could and that Melissa said aloud immediately
that it hurt. (Tr. at 214). Carol testified that about five minutes later Gipson hit
Melissa again so hard that he almost knocked her off her feet. (Id. at 214). Carol
testified that Gipson struck Melissa with a closed fist. Carol testified that she did
not call the police after this incident. However, Carol testified that she did call the
police while she was at Roxanne’s residence on the date she learned of Roxanne’s
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concerns that Gipson would not leave. Carol testified that she called the police to
get them to come and remove Gipson. Before the police responded to that initial
call, Carol called the police a second time when she learned from Melissa that
Gipson may have had a gun. Carol testified that the police came and removed
Gipson from the residence.
{¶30} The State also presented the testimony of Patrolman Shane Huber of
the Lima Police Department, who was one of the officers that responded to the
residence after Carol called the second time.2 Patrolman Huber testified that while
he was on duty on January 24, 2015, he was dispatched to 1001 Crestwood Drive
for a dispute wherein one individual was possibly in possession of a firearm.
Patrolman Huber testified that when he arrived at the residence officers were
speaking with two women, one of whom was Melissa W., and Melissa informed
Patrolman Huber that Gipson had threatened her with a gun and had threatened to
kill her. Patrolman Huber testified that the officers on scene were given consent to
search the residence and they located Gipson in bed in a bedroom he shared with
Melissa. Patrolman Huber testified that he located a black pellet gun in the bottom
drawer of a nearby nightstand. Patrolman Huber testified that he took Gipson into
custody at that time.
2 Patrolman Huber actually testified first in the trial but we present his testimony here to provide a clearer narrative.
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{¶31} The final witness the State called was Detective Steve Stechschulte
of the Lima Police Department. Detective Stechschulte testified that Gipson’s
case was assigned to him as a “felony theft from elderly” on January 26, 2015.
(Tr. at 253). Detective Stechsculte testified that he spoke to Melissa, Carol, and
Roxanne about Gipson and his time residing in Melissa and Roxanne’s residence.
Detective Stechschulte testified that despite her dementia, Roxanne was aware that
her rings were missing. Detective Stechschulte testified that he spoke with Gipson
and Gipson told him that he threw the rings away.
{¶32} Detective Stechschulte testified that he spoke with Melissa and she
informed him of the incidences of violence. Detective Stechschulte testified that
Melissa was emotional during the interview. Detective Stechschulte testified that
he believed from his observations of Melissa that Melissa had low self-esteem and
was lonely. Detective Stechschulte testified that despite the fact the relationship
between Melissa and Gipson was not lengthy, it was not uncommon for people
who were lonely and had low self-esteem to quickly grow attached.
{¶33} Detective Stechschulte also testified as to the type of things he looks
for when determining whether someone is residing in a particular place for
purposes of being a household member, which included, “clothing inside the
house, how many nights they stay there, romantic attachment, anything that shows
romantic attachment, and then obviously what the victims state that will put the
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person there for multiple nights even if it is short term.” (Tr. at 270). Detective
Stechschulte testified that it is not uncommon for people to elect to reside together
as fast as Melissa and Gipson had. (Id. at 271).
{¶34} Detective Stechschulte also testified that Gipson had a prior
conviction for Domestic Violence in 2002, and a certified copy of the judgment
entry indicating that conviction was introduced into evidence. At the conclusion
of Detective Stechschulte’s testimony, the State rested its case.
Domestic Violence Convictions
{¶35} On appeal Gipson now argues that there was insufficient evidence to
convict him of both counts of Domestic Violence and that his convictions were
against the manifest weight of the evidence. Gipson specifically argues that the
State did not establish that Gipson was a “household member.” Gipson does not
contest any of the remaining elements of his domestic violence convictions.
{¶36} Household member is defined in R.C. 2919.25(F)(1) and (F)(2) as
follows.
(1) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;
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(ii) A parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.
{¶37} Although the statute does not define “cohabitation” as it is used in
R.C. 2919.25(F)(2), the Supreme Court of Ohio has construed the statutory term to
be comprised of two essential elements “ ‘(1) [the] sharing of familial or financial
responsibilities and (2) consortium.’ ” State v. Carswell, 114 Ohio St.3d 210,
2007-Ohio-3723, ¶ 35, quoting State v. Williams, 79 Ohio St.3d 459 paragraph
two of the syllabus. The Ohio Supreme Court further explained that, “ ‘Factors
that might establish consortium include mutual respect, fidelity, affection, society,
cooperation, solace, comfort, aid of each other, friendship, and conjugal relations.’
” Id. quoting Williams at 465.
{¶38} In this case the testimony at trial indicated that Gipson began
residing with Melissa at the residence she shared with Roxanne on approximately
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January 10, 2015. Melissa testified that she and Gipson were intimate, that he
stayed in her bedroom, and that she loved him. Melissa also testified that she
cooked daily for Gipson and that she provided him with toiletries. In addition,
Melissa testified that after Gipson began staying with her, she went with Gipson to
his prior residence to get Gipson’s clothes. Melissa also testified that Gipson had
people regularly call her phone if they were looking for him. Melissa specifically
testified that “when [Gipson] moved in he had my cell phone all the time.” (Tr. at
176). Gipson also used Melissa’s grandmother’s car as his primary mode of
transportation, and he clearly did some household duties such as cleaning out the
garage.
{¶39} In addition to Melissa’s testimony, Detective Stechschulte testified
that during his investigation into Gipson’s crimes, he never found any information
to show that Gipson was living anywhere other than 1001 Crestwood during the
time frame alleged in the indictment.
{¶40} Based on the testimony we find that sufficient evidence was
presented to convict Gipson based on him being a “household member.” At the
very least, we cannot find that plain error existed in this case. Moreover, while
Gipson does not challenge the remaining elements of his Domestic Violence
convictions, we would note that there was sufficient evidence presented to support
those elements as well.
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{¶41} Similarly we cannot find that Gipson’s convictions for Domestic
Violence were against the weight of the evidence. Gipson makes the same
arguments related to sufficiency that he does to manifest weight, contending that
the State did not adequately establish that he was a “household member.”
Melissa’s testimony established that Gipson resided with her, that she provided his
food and toiletries, that his clothes were at her residence, that she and Gipson were
intimate, and that she loved Gipson. Gipson put forth no contrary evidence to
establish that he was living elsewhere during the time frame established by the
State, relying only on the initial police report that stated Gipson’s address was
elsewhere; however, this was explained by the officers who testified. The officers
indicated that if someone had previously been in contact with law enforcement, as
Gipson had, officers often did not update the address in their system when
preparing a new report.
{¶42} Based on the evidence in the record we cannot find that the factfinder
clearly lost its way in convicting Gipson of both counts of Domestic Violence or
that there was a manifest miscarriage of justice. Therefore, Gipson’s arguments
related to the Domestic Violence convictions are not well-taken.
Theft from a Person in a Protected Class
{¶43} Gipson next claims that the State presented insufficient evidence to
convict him of Theft from a Person in a Protected Class, and that his conviction
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was against the manifest weight of the evidence. Gipson contends that there was
no direct evidence that he stole Roxanne’s rings and that the evidence against him
was based on “conjecture.”
{¶44} Contrary to Gipson’s arguments, Melissa specifically testified that
she was present when Gipson asked to clean Roxanne’s rings the second time.
Gipson took the rings from Roxanne and made several statements that they were
in the garage in “acid.” Both Melissa and Carol testified that they could not find
the rings when they looked for them. The house and garage were thoroughly
searched and the rings were not located. When Gipson was questioned about the
rings by Detective Stechschulte, Gipson stated that he had thrown them away.
{¶45} In addition, there was clear testimony as to the value of two of the
rings, having been appraised in 1984 and 1991 for a total of $5,000. Detective
Stechschulte actually testified that due to the increase in the value of gold and
diamonds, the rings were likely actually worth more than their dated appraisals.
Finally, there was clear testimony that Roxanne was well over the age of 65.
{¶46} On the basis of this testimony, we cannot find that there was
insufficient evidence to convict Gipson of Theft from a Person in a Protected
Class, or that his conviction was against the manifest weight of the evidence.
Therefore, Gipson’s argument is not well-taken, and his third assignment of error
is overruled.
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Second Assignment of Error
{¶47} In Gipson’s second assignment of error, he argues that the trial court
erred in admitting the pellet gun into evidence. Specifically, Gipson contends that
the incident in which Gipson used the pellet gun to threaten Melissa was not an
incident before the jury for determination and thus the pellet gun was irrelevant
and prejudicial.
{¶48} A trial court has broad discretion with respect to the admission of
evidence. State v. Maurer, 15 Ohio St.3d 239, 265 (1984). An appellate court
will not overturn the decision of a trial court regarding the admission of evidence
absent a clear abuse of discretion that produced a material prejudice to the
defendant. State v. Roberts, 9th Dist. Summit No. 21532, 2004-Ohio-962, ¶ 14.
An abuse of discretion is more than an error of judgment, it means that the trial
court’s ruling was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶49} In this case the State introduced a pellet gun as an exhibit at trial
when Patrolman Shane Huber was testifying. Patrolman Huber testified that he
had been dispatched to the residence where Gipson was staying and was informed
that Gipson may have a weapon. Patrolman Huber testified that he located the
pellet gun in a dresser beside the bed in which Gipson was sleeping. The pellet
gun was later referenced again in Melissa’s testimony, where she indicated that the
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weapon was the one that Gipson threatened her with. It was then referred to again
in Detective Stechschulte’s testimony.
{¶50} The State argues on appeal that the pellet gun, and the incident in
which Melissa was threatened with it, was relevant to show the “intent” of Gipson
when he choked her and struck her on the other occasions that were actually
before the jury. The State contended that the incident with the pellet gun was also
used to show the “absence of mistake” in Gipson’s actions. Gipson attempted to
argue that when he was striking Melissa in the Domestic Violence incidents,
particularly during the second incident, he was merely “playing around.” The
State argued that Gipson threatening Melissa with a weapon established that
Gipson was not “joking.”
{¶51} Gipson counters the State’s arguments by contending that the pellet
gun was irrelevant and prejudicial. Notably, while Gipson initially objected to
entering the pellet gun into evidence when Patrolman Huber testified, he did not
object to the pellet gun’s admission into evidence at the close of the State’s case.
Notwithstanding Gipson’s failure to object at that time, we cannot find that the
trial court abused its discretion by allowing the State to present the pellet gun.
While the pellet gun could have been prejudicial, it also could have been used to
establish Gipson’s motive and intent as argued by the State, and we cannot find
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that the trial court abused its discretion in allowing its admission.3 However, even
if we did find that the trial court abused its discretion, we cannot find that the
introduction of the pellet gun was so prejudicial that it tainted the entire trial.
Therefore, Gipson’s second assignment of error is overruled.
{¶52} Accordingly, for the foregoing reasons Gipson’s assignments of error
are overruled and the judgment of the Allen County Common Pleas Court is
affirmed.
PRESTON and ROGERS, J.J., concur.
/jlr
3 The jury was also instructed that the other acts evidence could not be used to show action in conformity therewith, but rather for “motive, intent, identity, purpose, or modus operandi.” (July 7, 2015, Tr. at 49).
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