[Cite as State v. Hardman, 2012-Ohio-2453.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J. -vs- Case No. 11CAA110107 HOLLIE HARDMAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 11CR-I-09-0471
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY May 31, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN LINDA KENDRICK Prosecuting Attorney 79 North Sandusky Street ERIC C. PENKAL Delaware, Ohio 43015 Assistant Proseucting Attorney 140 N. Sandusky Street 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 11CAA110107 2
Hoffman, J.
{¶1} Defendant-appellant Hollie Hardman appeals his conviction entered by the
Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 4, 2011, a Dark Blue H3 Hummer SUV vehicle was reported
stolen to the Delaware City Police Department. Early that same morning, Clifford
Hubbard, Sr. contacted the Delaware Police Department to report an individual
criminally damaging his yard with a large, dark SUV. Appellant lived with Hubbard at the
time of the incident.
{¶3} Later the same day, Officer Madden of the Delaware Police Department
spoke with Appellant regarding the incident.
{¶4} Appellant responded he was not involved with driving the SUV before
Officer Madden had an opportunity to question him regarding the incident.
{¶5} Later in the afternoon, Appellant was seen by Officer Willauer of the
Delaware Police Department driving the stolen vehicle, after a license plate search
confirmed the identification of the vehicle. Upon being seen by the officer, Appellant left
the vehicle in a driveway, and fled on foot. Appellant was then apprehended by law
enforcement with Gregory Houston, Jr.
{¶6} Appellant was indicted on one count of receiving stolen property, in
violation of R.C. 2913.51(A), a fourth degree felony. Following a jury trial, Appellant
was convicted of the charge, and sentenced to eighteen months in prison.
{¶7} Appellant now appeals, assigning as error: Delaware County, Case No. 11CAA110107 3
{¶8} “I. THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE A
MATERIAL WITNESS WAS NOT PRESENT TO TESTIFY AT TRAIL [SIC].
{¶9} “II. THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE HE DID
NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶10} “III. DEFENDANTS CONVICYION [SIC] WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
I & II.
{¶11} Appellant’s first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶12} Appellant asserts he was denied the effective assistance of counsel and
the right to a fair trial as his trial counsel failed to secure the trial testimony of a material
witness. Specifically, Appellant argues his trial counsel failed to secure the trial
testimony of Gregory Houston, Jr. The prosecution had filed a subpoena for Gregory
Houston, Jr. to appear as a witness at trial. Houston was also listed as a witness in the
trial brief filed by the State. However, the State decided not to call Houston as a
witness at trial, and Appellant’s counsel had not subpoenaed him to appear. Nor did
trial counsel move the trial court for a continuance to secure Houston’s testimony.
{¶13} The standard for ineffective assistance of counsel is set out in State v.
Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari
denied (1990), 497 U.S. 1011. Appellant must establish the following:
{¶14} “2. Counsel's performance will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel's Delaware County, Case No. 11CAA110107 4
performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;
Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
followed.)
{¶15} “3. To show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different.”
{¶16} Appellant cites Section 10, Article I of the Ohio Constitution which
provides an accused shall have compulsory process to procure the attendance of
witnesses in his behalf. Appellant asserts he was denied his right to present Houston, a
material witness, to establish his defense, because his defense counsel was aware the
witness had been subpoenaed by the State and erroneously presumed the witness
would be available for him to question. Further, counsel failed to request a continuance
once it was learned Houston was not to be presented as a witness by the prosecution.
Appellant maintains Houston was a material witness as he was in the vehicle when it
was observed by Officer Willauer, and he would have shed light on the facts and
Appellant's knowledge as to whether the vehicle was stolen.
{¶17} Appellant's right to compulsory process does not include the right to have
the State locate or call witnesses on his behalf. Lancaster v. Green, 175 Ohio St.203,
(1963). Appellant speculates Houston's testimony would have supported his defense
but there is no record evidence to support this speculation. Appellant has not
demonstrated there exists a reasonable probability the outcome of the trial would have
been otherwise but for counsel's alleged error. Accordingly, the first and second
assignments of error are overruled. Delaware County, Case No. 11CAA110107 5
III.
{¶18} In the third assignment of error, Appellant asserts his conviction for
receiving stolen property is against the manifest weight of the evidence.
{¶19} On review for manifest weight, a reviewing court is to 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175.
See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new
trial “should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Martin at 175.
{¶20} Appellant was convicted of one count of receiving stolen property, in
violation of R.C. 2913.51(A), which reads:
{¶21} "(A) No person shall receive, retain, or dispose of property of another
knowing or having reasonable cause to believe that the property has been obtained
through commission of a theft offense."
{¶22} In this case, there was ample evidence to support Appellant's conviction.
A vehicle was reported damaging property at the residence where Appellant lived, and
the vehicle matched the description of the vehicle reported stolen.
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[Cite as State v. Hardman, 2012-Ohio-2453.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J. -vs- Case No. 11CAA110107 HOLLIE HARDMAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 11CR-I-09-0471
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY May 31, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN LINDA KENDRICK Prosecuting Attorney 79 North Sandusky Street ERIC C. PENKAL Delaware, Ohio 43015 Assistant Proseucting Attorney 140 N. Sandusky Street 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 11CAA110107 2
Hoffman, J.
{¶1} Defendant-appellant Hollie Hardman appeals his conviction entered by the
Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 4, 2011, a Dark Blue H3 Hummer SUV vehicle was reported
stolen to the Delaware City Police Department. Early that same morning, Clifford
Hubbard, Sr. contacted the Delaware Police Department to report an individual
criminally damaging his yard with a large, dark SUV. Appellant lived with Hubbard at the
time of the incident.
{¶3} Later the same day, Officer Madden of the Delaware Police Department
spoke with Appellant regarding the incident.
{¶4} Appellant responded he was not involved with driving the SUV before
Officer Madden had an opportunity to question him regarding the incident.
{¶5} Later in the afternoon, Appellant was seen by Officer Willauer of the
Delaware Police Department driving the stolen vehicle, after a license plate search
confirmed the identification of the vehicle. Upon being seen by the officer, Appellant left
the vehicle in a driveway, and fled on foot. Appellant was then apprehended by law
enforcement with Gregory Houston, Jr.
{¶6} Appellant was indicted on one count of receiving stolen property, in
violation of R.C. 2913.51(A), a fourth degree felony. Following a jury trial, Appellant
was convicted of the charge, and sentenced to eighteen months in prison.
{¶7} Appellant now appeals, assigning as error: Delaware County, Case No. 11CAA110107 3
{¶8} “I. THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE A
MATERIAL WITNESS WAS NOT PRESENT TO TESTIFY AT TRAIL [SIC].
{¶9} “II. THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE HE DID
NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶10} “III. DEFENDANTS CONVICYION [SIC] WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
I & II.
{¶11} Appellant’s first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶12} Appellant asserts he was denied the effective assistance of counsel and
the right to a fair trial as his trial counsel failed to secure the trial testimony of a material
witness. Specifically, Appellant argues his trial counsel failed to secure the trial
testimony of Gregory Houston, Jr. The prosecution had filed a subpoena for Gregory
Houston, Jr. to appear as a witness at trial. Houston was also listed as a witness in the
trial brief filed by the State. However, the State decided not to call Houston as a
witness at trial, and Appellant’s counsel had not subpoenaed him to appear. Nor did
trial counsel move the trial court for a continuance to secure Houston’s testimony.
{¶13} The standard for ineffective assistance of counsel is set out in State v.
Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari
denied (1990), 497 U.S. 1011. Appellant must establish the following:
{¶14} “2. Counsel's performance will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel's Delaware County, Case No. 11CAA110107 4
performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;
Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
followed.)
{¶15} “3. To show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different.”
{¶16} Appellant cites Section 10, Article I of the Ohio Constitution which
provides an accused shall have compulsory process to procure the attendance of
witnesses in his behalf. Appellant asserts he was denied his right to present Houston, a
material witness, to establish his defense, because his defense counsel was aware the
witness had been subpoenaed by the State and erroneously presumed the witness
would be available for him to question. Further, counsel failed to request a continuance
once it was learned Houston was not to be presented as a witness by the prosecution.
Appellant maintains Houston was a material witness as he was in the vehicle when it
was observed by Officer Willauer, and he would have shed light on the facts and
Appellant's knowledge as to whether the vehicle was stolen.
{¶17} Appellant's right to compulsory process does not include the right to have
the State locate or call witnesses on his behalf. Lancaster v. Green, 175 Ohio St.203,
(1963). Appellant speculates Houston's testimony would have supported his defense
but there is no record evidence to support this speculation. Appellant has not
demonstrated there exists a reasonable probability the outcome of the trial would have
been otherwise but for counsel's alleged error. Accordingly, the first and second
assignments of error are overruled. Delaware County, Case No. 11CAA110107 5
III.
{¶18} In the third assignment of error, Appellant asserts his conviction for
receiving stolen property is against the manifest weight of the evidence.
{¶19} On review for manifest weight, a reviewing court is to 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175.
See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new
trial “should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Martin at 175.
{¶20} Appellant was convicted of one count of receiving stolen property, in
violation of R.C. 2913.51(A), which reads:
{¶21} "(A) No person shall receive, retain, or dispose of property of another
knowing or having reasonable cause to believe that the property has been obtained
through commission of a theft offense."
{¶22} In this case, there was ample evidence to support Appellant's conviction.
A vehicle was reported damaging property at the residence where Appellant lived, and
the vehicle matched the description of the vehicle reported stolen. Later the same day,
Officer Willauer of the Delaware Police Department observed Appellant driving the
stolen vehicle. When Appellant saw law enforcement, he ditched the stolen vehicle
along the side of the road, and fled the scene. When questioned by the police,
Appellant gave several inconsistent stories, and incriminated his passenger Houston. Delaware County, Case No. 11CAA110107 6
{¶23} Based upon the above, we find Appellant's conviction for receiving stolen
property is not against the manifest weight of the evidence, and the jury did not lose its
way in convicting Appellant of the charge. The third assignment of error is overruled.
{¶24} Appellant's conviction entered by the Delaware County Court of Common
Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS Delaware County, Case No. 11CAA110107 7
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : HOLLIE HARDMAN : : Defendant-Appellant : Case No. 11CAA110107
For the reasons stated in our accompanying Opinion, Appellant's conviction
entered by the Delaware County Court of Common Pleas is affirmed. Costs to
Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS