[Cite as State v. Hostacky, 2014-Ohio-2975.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100003
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENNIS HOSTACKY
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-567826
BEFORE: Jones, P.J., Rocco, J., and McCormack, J.
RELEASED AND JOURNALIZED: July 3, 2014 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
BY: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Fallon Radigan Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Dennis Hostacky appeals his convictions for aggravated
robbery, kidnapping, theft, carrying a concealed weapon, and having weapons while
under disability. The state concedes Hostacky’s argument with respect to merger as to
the having weapons while under disability counts; thus, his convictions and sentences are
affirmed in part and reversed in part, and this case is remanded for proceedings consistent
with this opinion.
I. Procedural History and Facts
{¶2} In 2012, Hostacky was charged with the following: one count each of
kidnapping and aggravated robbery, both with one- and three-year firearm, notice of prior
conviction, and repeat violent offender specifications; one count each of misdemeanor
theft, carrying a concealed weapon and improperly handling firearms in a motor vehicle;
and two counts of having weapons while under disability.
{¶3} Prior to trial, Hostacky waived his right to a jury trial with regard to the
notice of prior conviction and repeat violent offender specifications and the having
weapons under disability counts. The case proceeded to a jury trial on the remaining
charges.
{¶4} The following facts pertinent to this appeal were presented at trial.
{¶5} Gary Humpal answered an advertisement on Craigslist for employment. He
went to meet a man by the name of “Steve” in the parking lot of Sam’s Club on
Brookpark Road early one morning to receive instructions for the job, that consisted of going door-to-door to pass out flyers for a landscaping company. Humpal was assigned
to work with Hostacky; they drove to Rocky River in Hostacky’s minivan. When they
arrived in Rocky River, the men began to pass out flyers on different sides of a residential
street
{¶6} The men took a break for lunch. Humpal testified that he had a couple
hundred dollars on him, which Hostacky saw when he paid for lunch. After lunch, the
men continued to pass out flyers for approximately two or three more hours before Steve
stopped by to pay them.
{¶7} Humpal testified that Hostacky convinced him to stop early and offered to
take him back to Sam’s Club, but instead, took Humpal to a bar. Humpal testified that
he drank “water with lemon,” because he did not drink alcohol. While at the bar,
Hostacky inquired if Humpal had ever tried heroin and said that he and his wife do “a
bag” every night.
{¶8} After leaving the bar, Hostacky drove into Cleveland and picked up a woman
named “Melissa.”1 At this time, Humpal moved into the backseat. He could see
Hostacky and Melissa whispering, but could not hear them because he had headphones
on.
{¶9} Hostacky drove to a store and stopped in the parking lot behind the store.
Hostacky demanded Humpal’s money, pulled out a gun from under the driver’s seat,
The same woman is identified as both “Melissa” and “Michelle” during trial, 1
but because her identity is unknown and for ease of discussion, we will refer to her as Melissa. jumped on top of Humpal, and went for Humpal’s pockets. Humpal started “freaking”
out and tried to jump out of the van. Humpal testified that he was wearing a blue jacket,
which came off when he escaped out of the van. Humpal lost “several hundred
dollars, his phone, jacket, his brother’s vintage Plain Dealer bag, and a phone charger.”
{¶10} Once Humpal was out of the van, Hostacky “peeled” out of the parking lot
with Melissa, leaving Humpal behind.
{¶11} Humpal called the police from a nearby barber shop. When police arrived,
they took Humpal to tour the area in search of Hostacky, but were unable to locate him.
Humpal made a statement and picked Hostacky out of a photo array.
{¶12} Humpal admitted to having a criminal record for 2004 and 2005
convictions.
{¶13} Cleveland Police Sergeant Tommy Shoulders testified he arrived on scene
and spoke with Humpal, who was “upset.” Through his investigation, the sergeant
discovered Hostacky’s name and address and located the minivan at his home in North
Ridgeville. Humpal’s jacket, phone charger, Walkman, ear buds, and Plain Dealer bag
were located inside the van, but the gun and money were not recovered.
{¶14} Cleveland Police Officer Elizabeth Galarza testified she responded to the
scene and Humpal appeared “scared and terrified.” She stated that he was “visibly
shaken, crying * * * I would say he was terrified.” She later elaborated that “he was
visibly shaken; he was shaking, he was crying. He didn’t have his jacket because the
suspect took his jacket; it was cold out. He couldn’t believe that the guy put a gun in his face.”
{¶15} Detective Elliot Landrau testified that he arrived on scene, spoke with
Humpal, and drove Humpal around for approximately four hours looking for the minivan.
Based on his experience, the detective did not think Humpal was under the influence
of drugs or alcohol. The detective explained how people who are under the influence of
crack cocaine emit a distinctive “plastic” smell and usually have burns and calluses on
their fingers and lips from the glass pipes used to smoke the drug. The detective
testified that Humpal “was in the back seat of our car for several hours; throughout the
day he was in our office. I watched this individual” and he did not have any of these
characteristics.
{¶16} Detective Landrau eventually recovered Humpal’s items from Hostacky’s
minivan. He also took a statement from Hostacky, who “started telling us a story that
they had been getting high or drinking and all that. We knew that this was not true and we
advised him of that and we terminated our interview, because we knew it wasn’t going to
be an accurate, truthful statement, so we didn’t want to waste our time listening to all
that.”
{¶17} Hostacky testified he was married with six children. On the day of the
incident, he was working with Humpal passing out flyers in Rocky River. When they
went to the bar, Hostacky had two beers, a vodka, and a shot and Humpal had one shot of
vodka. When they were driving back to Sam’s Club, Humpal wanted to smoke
marijuana. Hostacky told Humpal he could not smoke pot because he was on probation but he could smoke crack so the men went to a store and bought two crack pipes.
{¶18} Hostacky further testified that the men bought $50 worth of crack cocaine
and smoked it. They bought $100 more of the drug. Humpal told Hostacky, “they
should get a girl.” Hostacky testified that he had some girls “he hung out with,” but did
not want to introduce them to Humpal, so he drove to an area frequented by prostitutes
and picked up Melissa. Hostacky stated that Humpal and Melissa “took care of
business” in the back seat and, although Melissa “offered” him the same, he declined her
invitation.
{¶19} Hostacky testified that they wanted more crack cocaine, but because they
were out of both drugs and money, Humpal suggested he sell his food stamps.
Hostacky drove to a store where Humpal could sell his food stamps, but while Humpal
was in the store, Hostacky’s wife texted him to come home. Hostacky testified,
part of why I get high, I just kind of don’t want to deal with things. I finally started checking my phone messages. My wife had texted a couple times and I see I missed two calls. Hostacky testified that he texted his wife and told her he was on his way home, that “he
lied” to his wife and said he would “be home in a minute.”
{¶20} Hostacky left, leaving Humpal behind. Hostacky admitted that he took
Melissa with him and dropped her off even though he left Humpal at the store. Finally,
Hostacky testified “when it comes to lying, yeah, I’m more—I’m a liar when I’m high.”
{¶21} Hostacky admitted he had a record and was currently on postrelease control;
he had been convicted of burglary and theft. He denied having a gun or using it on
Humpal. He admitted to being a drug addict since he was 14 years old and his drug of choice was crack cocaine.
{¶22} The jury convicted Hostacky of kidnapping and aggravated robbery with the
one- and three-year firearm specifications, theft, and carrying a concealed weapon but
acquitted him of improperly handling firearms in a motor vehicle. The trial court
convicted Hostacky of two counts of having weapons under disability but acquitted him
of the notice of prior conviction and repeat violent offender specifications.
{¶23} At sentencing, the trial court stated it was imposing a total sentence of eight
years in prison as follows: the aggravated robbery and kidnapping charges merged with
three years on the “base charge” and three years on the firearm specification to be served
prior and consecutive to the underlying sentence; time served for theft; 18 months for
carrying a concealed weapon count to be served concurrent with the other counts and 12
months for each having weapons under disability count, to run consecutive to each other.
{¶24} Hostacky timely filed his notice of appeal.
{¶25} Prior to oral argument in this case, we remanded the case to the trial court,
noting that the sentencing journal entry imposed a six-year sentence, contrary to the
eight-year sentence the court stated it was imposing during the sentencing hearing. We
further noted that the trial court did not mention in its journal entry whether the state had
elected to proceed to sentencing on the aggravated robbery or kidnapping conviction.
This court indicated that the trial court’s jurisdiction on remand was limited to clarifying
the sentencing journal entry by identifying whether the sentence was imposed on the
aggravated robbery or kidnapping conviction and to make the appropriate corrections to the journal entry to reflect the sentence actually imposed by the court at the sentencing
hearing.
{¶26} On remand, the trial court issued a nunc pro tunc entry in which it noted that
the state elected to proceed to sentencing on the aggravated robbery count. The trial
court further noted that Hostacky was sentenced to 12 months on each having weapons
under disability count and that the counts were to run consecutive to each other and to all
other counts, for a total sentence of eight years in prison.
{¶27} Hostacky raises four assignments of error for our review.
II. Assignments of Error
I. It is plain error in violation of the Sixth and Fourteenth Amendments and Section 10, Article I of the Ohio Constitution for police officers to invade the province of the jury by declaring the story told by the alleged victim in a case was true and that the statements of the defendant were lies.
II. Pervasive prosecutorial misconduct during rebuttal closing argument constituted plain error in violation of the Sixth and Fourteenth Amendments and Section 10, Article I of the Ohio Constitution.
III. Mr. Hostacky received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and under Section 10, Article I of the Ohio Constitution when his attorney repeatedly and consistently failed to object to testimony and argument that were highly improper and prejudicial.
IV. The trial court committed error when it imposed separate and
consecutive sentences for two counts of having a weapon under a disability
when the two charges address possession of the same gun at the same time.
III. Law and Analysis
Witness Testimony {¶28} In the first assignment of error, Hostacky claims that the trial court
committed plain error for failing to exclude certain statements made by two of the
testifying police officers.
{¶29} The trial court has broad discretion in the admission or exclusion of
evidence. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of
the syllabus. Absent an abuse of discretion and a showing of material prejudice, a trial
court’s ruling on the admissibility of evidence will be upheld. State v. Martin, 19 Ohio
St.3d 122, 129, 483 N.E.2d 1157 (1985).
{¶30} Hostacky concedes that he failed to object at trial to the instances of which
he now complains; therefore, he waives all but plain error. In order to find plain error, it
must be determined that, but for the error, the outcome of the proceeding clearly would
have been different. State v. Long, 53 Ohio St.2d 91, 96-97, 372 N.E.2d 804 (1978).
{¶31} Hostacky’s first claim is that Officer Galarza improperly vouched for
Humpal’s credibility when she testified: “At first I thought he was drunk, then I realized
it really happened to him.”
{¶32} Hostacky relies on this court’s decision in State v. Young, 8th Dist.
Cuyahoga No. 79243, 2002-Ohio-2744, where this court found plain error when a
detective, asked whether a witness’s story was consistent, testified the witness was telling
the truth. This court found that the police officer usurped the role of the jury in
determining witness credibility. Id. at ¶ 63.
{¶33} But in State v. Craig, 8th Dist. Cuyahoga No. 94455, 2011-Ohio-206, this court declined to find plain error when an officer testified that she believed a witness, the
defendant’s girlfriend, had lied to her about the defendant’s real name. This court noted
that the officer was testifying to the steps in his investigation and whether he could rely
on the information the defendant’s girlfriend provided to him. The court also noted that
there was evidence other than the officer’s improperly admitted statement to convict the
defendant. Id. at ¶ 18.
{¶34} We find the instant case more analogous to Craig. When Officer Galarza
made the statement that she “realized it really happened to him,” she was not improperly
vouching for the victim’s credibility. On cross-examination, defense counsel questioned
Officer Galarza about the victim’s demeanor in an apparent attempt to have the officer
admit that Humpal was angry Hostacky left him at the store without a ride, as opposed to
scared because he had been robbed at gunpoint. On redirect, the state asked the officer
to describe Humpal’s demeanor and why the officer, on cross-examination, had described
Humpal’s demeanor as “afraid or terrified,” instead of “angry.” Galarza responded:
His demeanor was he was visibly shaken; he was shaking, he was crying. He didn’t have his jacket because the suspect took his jacket; it was cold out. He couldn’t believe that the guy put a gun in his face. He was just like somebody that was robbed, he was just crying and shaking. At first I thought he was drunk, then I realized that it really happened to him.
{¶35} In the context of her testimony, we do not find that Galarza’s statement
amounts to improper opinion testimony. Galarza was merely explaining on redirect,
after cross-examination about the victim’s demeanor, how the victim was acting when she
arrived on scene. {¶36} Hostacky’s second complaint is with regard to Detective Landrau’s
testimony. Hostacky claims that Detective Landrau improperly opined that Hostacky
was not being truthful when the detective testified that, during his interview with
Hostacky, the suspect told
a story that they had been getting high or drinking and all that. We knew this was not true and we advised him of that and we terminated our interview because we knew it wasn’t going to be an accurate, truthful statement, so we didn’t want to waste our time listening to all that.
Hostacky claims that allowing this statement into evidence amounted to plain error and
deprived him of a fair trial.
{¶37} We decline to find that the detective’s statement that he did not believe
Hostacky’s story amounted to plain error. We agree with the state that when reviewing
the record in its totality, Hostacky was not prejudiced by the admission of the officer’s
statements. During this portion of the detective’s testimony, he was explaining the steps
he took in his investigation. We further note that Hostacky testified on his own behalf;
therefore, the jury was able to perceive his credibility firsthand and decide for themselves
whether he was being truthful. State v. Allen, 8th Dist. Cuyahoga No. 92482,
2010-Ohio-9, ¶ 52, citing State v. Burchett, 12th Dist. Preble Nos. 2003-09-017 and
2003-09-018, 2004-Ohio-4983,¶ 20; see also State v. Proffitt, 72 Ohio App.3d 807, 596
N.E.2d 527 (12th Dist.1991).
{¶38} Finally, we note that there was other evidence to support Hostacky’s
conviction. When the police arrested Hostacky, they found Humpal’s belongings in his
van. Thus, “the determinative issue for the trier of fact” was not only the truthfulness and credibility of the victim and the defendant. See Allen at ¶ 53.
{¶39} In light of the above, although the admission of Detective Landrau’s
statement may have been in error, we decline to find that it amounted to plain error.
{¶40} The first assignment of error is overruled.
Prosecutorial Misconduct
{¶41} In the second assignment of error, Hostacky argues that the state committed
prosecutorial misconduct. He again concedes that because he did not object to the
prosecutor’s allegedly improper statements, he is limited to arguing plain error on appeal.
{¶42} The test for prosecutorial misconduct is whether the prosecutor’s remarks
were improper and, if so, whether they prejudicially affected the substantial rights of the
accused. State v. Bey, 85 Ohio St.3d 487, 493, 709 N.E.2d 484 (1999). The focus of
that inquiry is on the fairness of the trial, not the culpability of the prosecutor. Id.
{¶43} Both the prosecution and the defense enjoy wide latitude in closing
arguments as to what they believe the evidence has shown and what reasonable inferences
may be drawn from the evidence. State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d
773 (1970). Moreover, “prosecutorial misconduct constitutes reversible error only in
‘rare instances.”’ State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993),
quoting State v. DePew, 38 Ohio St.3d 275, 288, 528 N.E.2d 542 (1988).
{¶44} Hostacky’s initial claim is that the prosecutor committed misconduct by
making general statements to the jury during closing arguments that crime is pervasive
throughout the county, drugs are destroying neighborhoods, and crime affects all families, including defendants’ families.
{¶45} We agree with Hostacky that these statements were irrelevant to the
question of whether he was guilty of the crimes he was charged with; however, their
admission does not rise to the level of plain error because there is no evidence that, but
for their admission, the outcome of the trial would have been different.
{¶46} Hostacky next argues that the prosecutor improperly vouched for the
victim’s credibility by making the following statements during closing argument: “an
officer said [Humpal] was sobbing that night [and] * * * after his testimony that day he
was out in the hallway sobbing as well. He’s a victim”; “as he so honestly told you”;
“[w]hat you heard there was a truthful statement of a guy”; and “he [Humpal] wasn’t
lying to you.”
{¶47} We recognize that
a prosecutor is not allowed to express a personal opinion concerning the credibility of evidence, but can argue that the character, quality, or consistency of particular evidence or witnesses should be considered when assessing credibility.
State v. Cody, 8th Dist. Cuyahoga No. 77427, 2002-Ohio-7055, ¶ 35. Although it is
never advisable for a prosecutor to aver that a witness is telling the truth, upon reviewing
the prosecutor’s remarks in the context of the entire trial, we do not find that they
prejudicially affected Hostacky’s substantial rights. The statements were made in the
context of the prosecutor arguing that the victim did not have a motive to lie because he
was a simple man who lived a simple life and his demeanor throughout the process
showed that he was a victim. {¶48} Moreover, the trial court instructed the jury that “opening statements and
closing arguments do not constitute evidence in the case and will not be so considered.”
The jury is presumed to follow the instructions of the trial court. Pang v. Minch, 53
Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990), paragraph four of the syllabus. Hostacky
has not pointed to any evidence in the record that the jury failed to do so in this case.
{¶49} In light of the above, the second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶50} In the third assignment of error, Hostacky argues that he received ineffective
assistance of counsel when his attorney failed to object to witness testimony and the
prosecutor’s closing argument and such failure was prejudicial to him.
{¶51} A defendant who claims constitutionally ineffective assistance of counsel
must show not only that his or her lawyer’s representation fell below reasonable
professional standards, but that he or she was prejudiced as a result. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Johnson,
88 Ohio St.3d 95, 108, 723 N.E.2d 1054, (2000). As with prosecutorial misconduct, the
defendant must show that he or she was deprived of a fair trial, meaning that, but for his
or her lawyer’s errors, there is a reasonable probability the outcome of the trial would
have been different. Strickland at 687-694.
{¶52} Hostacky claims that trial counsel “repeatedly failed to object when he
should have” during Officer Galarza and Detective Landrau’s testimonies and during the
prosecutor’s closing arguments. But a review of the record shows that defense counsel did object throughout the trial. Trial counsel objected to the questions asked and
evidence offered during both the direct and cross-examination of witnesses.
{¶53} Trial counsel chose when and what to object to at the time of the trial.
Although Hostacky claims that Officer Galarza’s testimony should have been objected to,
counsel could have taken her testimony as an opportunity to question her perception and
opinion of Humpal and other theories of what could have happened during the incident.
We find the same to be true with regard to Detective Landrau’s testimony. Trial counsel
had the opportunity to object, and did object several times during his testimony, but he
also chose to cross-examine Detective Landrau based on the facts and the evidence
presented.
{¶54} Finally, with regard to the prosecutor’s closing arguments, we do not find
that Hostacky’s perceived view of his counsel’s lack of objecting rises to the level of
ineffective assistance of counsel. Hostacky is asking this court to second guess
counsel’s trial strategy, and we decline to do so. See State v. Grasso, 8th Dist.
Cuyahoga No. 98813, 2013-Ohio-1894, ¶ 62, citing State v. Gooden, 8th Dist. Cuyahoga
No. 88174, 2007-Ohio-2371, ¶ 38 (“Trial tactics and strategies do not constitute a denial
of effective assistance of counsel.”).
{¶55} Accordingly, the third assignment of error is overruled.
Sentencing
{¶56} In the fourth assignment of error, Hostacky claims that the trial court erred
when it sentenced him to consecutive sentences for each count of having weapons under disability.
{¶57} R.C. 2929.14(D)(1)(b) provides, “[a] court shall not impose more than one
prison term on an offender under division (D)(1)(a) of this section for felonies committed
as part of the same act or transaction.” The Ohio Supreme Court has defined “the same
act or transaction” as a “series of continuous acts bound by time, space and purpose, and
directed toward a single objective.” State v. Wills, 69 Ohio St.3d 690, 691, 635 N.E.2d
370 (1994). The state concedes this assignment of error, noting that since there was only
one handgun and the facts arose out of a single incident, the two having weapons under
disability counts should have merged.
{¶58} We agree and remand the case for the limited purpose of merging the having
weapons under disability convictions. After such merger, the state shall elect to proceed
with sentencing on either count and the court will resentence Hostacky on that count only.
See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25:
If, upon appeal, a court of appeals finds reversible error in the imposition of multiple punishments for allied offenses, the court must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must elect which allied offense it will pursue against the defendant.
{¶59} The fourth assignment of error is sustained.
{¶60} Affirmed in part, reversed in part, and remanded.
It is ordered that appellant and appellant split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
KENNETH A. ROCCO, J., and TIM McCORMACK, J., CONCUR