State v. Perkins

2009 Ohio 6722

• Court: Ohio Court of Appeals
• Decided: December 21, 2009
• Docket: 13-09-14, 13-09-15
• Status: Published

Opinion

[Cite as State v. Perkins, 2009-Ohio-6722.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-09-14

v.

WILLIAM H. PERKINS, OPINION

DEFENDANT-APPELLANT.

PLAINTIFF-APPELLEE, CASE NO. 13-09-15

Appeal from Seneca County Common Pleas Court Trial Court Nos. 08CR0158 and 08CR0208

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: December 21, 2009

APPEARANCES:

Craig M. Jaquith for Appellant

Derek DeVine for Appellee Case Nos. 13-09-14 and 13-09-15

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, William H. Perkins (“Perkins”) appeals the

judgment of the Seneca County Court of Common Pleas, finding him guilty of

aggravated robbery, trafficking in drugs, and other related felonies. On appeal,

Perkins claims that the trial court erred when it limited his cross-examination of a

witness at trial and when it ordered that he pay restitution without specifying the

recipients in the judgment entry. For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

{¶2} In August 2008, the Seneca County Grand Jury issued an eight-count

indictment against Perkins for an armed robbery of The Medicine Shoppe

Pharmacy in Tiffin, Ohio, for the theft of oxycodone (a Schedule II controlled

substance) from the establishment, for the sale and use of the drugs obtained in the

robbery, and for destroying and tampering with evidence associated with the

crimes. Perkins was indicted for: Count One – breaking and entering in violation

of R.C. 2911.13(A), a felony of the fifth degree; Count Two – aggravated robbery

in violation of R.C. 2911.01(A)(1), a felony of the first degree, with a firearm

specification in violation of R.C. 2941.145; Count Three – complicity to

tampering with evidence in violation of R.C. 2923.03(A)(2) and 2921.12(A)(1), a

felony of the third degree; Count Four – aggravated trafficking in drugs in

violation of R.C. 2925.03(A)(2) and (C)(1)(a); Count Five – receiving stolen

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property in violation of R.C. 2913.51, a felony of the fourth degree; Count Six –

aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(a), a felony

of the fourth degree; Count Seven – tampering with evidence in violation of R.C.

2921.12(A)(1), a felony of the third degree; and, Count Eight – incidents of

corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of the first degree

(“pattern of corrupt activity charge”).1

{¶3} Perkin’s first trial was held during six days in December 2008. Two

witnesses, Andrea Ford and Angela Wolfe, testified as accomplices after entering

into plea agreements with the State. Ms. Ford testified that she was engaged to

Perkins and that they had a child together. She further testified that she, Perkins,

and Ms. Wolf made plans to rob The Medicine Shoppe in order to obtain pills

containing oxycodone. On June 23, 2008, Ms. Ford used Ms. Wolfe’s car to drive

Perkins to Tiffin, and she waited outside in the car while he took his gun and went

into the pharmacy. After the robbery, they drove back to their trailer in Clyde

where they placed the pills into baggies for sale. Ms. Ford also testified about

burning the evidence from the robbery and obtaining spray paint in order to cover

up the maroon front bumper of the car that was used for the crime.

1 In September 2008, a separate indictment was issued for receiving stolen property, which charge was interlineated into the original indictment as Count Five, and the original Count Five, which had alleged the same offense, was dismissed. The two indictments resulted in two separate trial-court case numbers, 08 CR 158 and 08 CR 0208, but the two cases were consolidated before trial. As a result, there are two appeal numbers associated with this appeal, 13-09-14 and 13-09-15.

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{¶4} Ms. Wolfe testified that she sold a portion of the pills that Perkins

had obtained after the robbery, including a sale to an individual who was acting as

a confidential informant for the Tiffin Police Department. Subsequently, she made

several more trips to Perkin’s and Ms. Ford’s trailer, with the knowledge of the

police, in order to obtain additional information. Based on this information, a

search warrant for the trailer was obtained and the police recovered oxycodone,

drug paraphernalia, and additional evidence.

{¶5} Other witnesses also testified, including the two employees from

The Medicine Shoppe who described the robber by the clothes he was wearing and

his approximate height and weight. They could not positively identify the robber

because of the concealing clothing he wore, but they testified that he was armed

with a handgun.

{¶6} On December 29, 2008, the jury convicted Perkins of aggravated

possession of drugs and aggravated trafficking in drugs, and acquitted him of

breaking and entering. The jury was not able to reach a verdict concerning the

remaining five counts, which were scheduled for retrial.

{¶7} In February 2009, a second trial was held on four of the remaining

counts in the indictment. The State dismissed the pattern of corrupt activity

charge, and retried Perkins on the charges of aggravated robbery, receiving stolen

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property, tampering with evidence, and complicity to tampering with evidence.

The jury returned guilty verdicts on all four counts at issue in the second trial.

{¶8} A sentencing hearing was held on March 5, 2009, and the trial court

sentenced Perkins to a total of sixteen years and three months in prison. The trial

court also ordered Perkins “to pay restitution in the amount currently totaling

$17,017.22.” (March 6, 2009 Nunc Pro Tunc Judgment Entry of Sentencing.)

{¶9} It is from this judgment that Perkins appeals, presenting the

following two assignments of error for our review.

First Assignment of Error

The trial court erred when it improperly limited Mr. Perkin’s cross-examination of Andrea Ford, in violation of his rights as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and by Section 10, Article I of the Ohio Constitution.

Second Assignment of Error

The trial court erred in imposing a sentence that contains an order of restitution without identification of the individual or entity entitled to receive such restitution.

{¶10} In his first assignment of error, Perkins complains that the trial court

erred during the second trial when it sustained the State’s hearsay objection to

having Ms. Ford read excerpts from several letters. Perkins claims that the

readings from the letters were necessary for the purpose of impeaching Ms. Ford,

and that the outcome of the second trial was affected by their exclusion.

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{¶11} During cross-examination in the first trial, defense counsel presented

Ms. Ford with several letters that she had written to Perkins while she was in jail.

Ms. Ford acknowledged that she had written the letters and admitted that she had

stated in the letters that they were both innocent of the robbery of The Medicine

Shoppe. Ms. Ford was asked to read certain highlighted portions of the letters.

On redirect examination, Ms. Ford affirmed that she was now telling the truth at

trial, and that the statements of innocence in the letter were not the truth.

{¶12} In the second trial, defense counsel again attempted to impeach Ms.

Ford through the use of her letters to Mr. Perkins. Counsel handed Ms. Ford the

letters and she acknowledged that she had written them while in jail before she had

changed her plea. However, when defense counsel asked her to read the

highlighted portions, the State objected, arguing that the letters were hearsay and

were being offered to prove the truth of the matter asserted therein.2 The trial

court sustained the objection. (Second Trial, Tr. Vol. II, p. 433). Defense counsel

then continued with cross-examination:

Q. *** During the time that you were in jail, before you saw – before – before you decided to cooperate with the State, what was your position on the charges against you?

A. That we were innocent.

Q. I’m sorry?

2 Both counsel then approached the bench, but the conversation was not on the record.

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Q. When you say “we” who’s “we”?

A. [Perkins] and I.

Q. How often did you express that?

A. Quite a bit. If anybody asked me I would tell them that we were innocent.

{¶13} On appeal, Perkins argues that defense counsel was attempting to

introduce the letters to impeach Ms. Ford, and not as substantive proof of his

innocence. He claims that Perkins had a right to elicit Ms. Ford’s reaction on the

witness stand to the confrontation with her own prior inconsistent statements and

that he had the right to have the jury observe the witness’s reactions to the prior

inconsistent statements.

{¶14} The admission or exclusion of evidence “lies within the broad

discretion of the trial court, and a reviewing court should not disturb evidentiary

decisions in the absence of an abuse of discretion that has created material

prejudice.” State v. Kesler, 3d Dist. No. 13-06-09, 2006-Ohio-6340, ¶ 33.

Accordingly, our review is limited to determining whether the trial court acted

unreasonably, arbitrarily, or unconscionably. Id., citing State v. Barnes, 94 Ohio

St.3d, 21, 23, 2002-Ohio-68, 759 N.E.2d 1240.

{¶15} Perkins cites this Court’s decision in State v. Talbert (1986) 33 Ohio

App.3d 282, 515 N.E.2d 968, in support of his contention that the trial court’s

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ruling was in error because he was denied his constitutional right to confront the

witness. “Pursuant to the Confrontation Clause of the Sixth Amendment to the

United States Constitution, every individual accused of a crime must be provided

the opportunity to cross-examine the witnesses and to provide an occasion for the

jury to weigh the demeanor of that witness.” State v. Talbert, 33 Ohio App.3d at

285, citing Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.

In Talbert, we held that the trial court’s ruling had denied the defendant his

right to effective cross-examination and was a prejudicial constitutional error. See

id. However, we find that the facts in this case are very different and the holding

in Talbert is not applicable to the facts in Perkin’s second trial.

{¶16} The defendant in the Talbert case had been accused of sexual

imposition. In order to attack the alleged victim’s credibility, defense counsel

asked if she had ever made certain statements.3 On the witness stand and under

oath, the witness denied having made those statements. Defense counsel then

requested a tape recorder to play back, in front of the witness and the jury, a

recording of a telephone conversation wherein the witness had made the alleged

statements. The trial court denied this request. However, the next day, the trial

court allowed the tape to be played to the witness outside of the presence of the

jury, rather than in open court. The witness listened to the tape in chambers and

3 In Talbert, the defense counsel sought to play a recording of the alleged victim saying she had “Talbert’s ass nailed” and that “[he] (Talbert) will never put his hands on another woman.” Talbert, at 284.

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then admitted making the statements. Talbert, 33 Ohio App.3d at 284. This Court

concluded that the trial court should have allowed defense counsel to play the tape

in open court so that the jury could have seen the reaction of the witness when

confronted with her own contrary statements. Id. at 285. Playing the recording of

the prior inconsistent statement for the witness in the privacy of chambers

eliminated this key factor. Id.

{¶17} The facts in the case before us now are clearly distinguishable from

the situation in Talbert. Ms. Ford had previously testified about those same letters

in the first trial, so there was no element of surprise and not likely to be any

reaction. In fact, she was confronted with the letters in front of the jury, and

defense counsel was permitted to ask her questions about them and their contents.

Unlike the Talbert witness, Ms. Ford had not denied that she had made the

statements in the letters; she acknowledged that she had. Defense counsel cross-

examined her concerning the letters, and she told the jury what was in those letters

and admitted that she had written statements proclaiming that they were innocent.

{¶18} In State v. McKinnon, the Seventh District Court of Appeals

considered a similar challenge when defense counsel fully confronted and cross-

examined the witness relative to her inconsistent statement; however, the report

containing the statement was not permitted to be admitted as an exhibit.

McKinnon, 7th Dist. No. 02 CO 36, 2004-Ohio-3359. In McKinnon, the court of

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appeals distinguished the case from Talbert and determined that there was no

prejudicial error because the witness’s reaction to the inconsistent statement in the

report was before the jury. In fact, similar to the case before us, the witness

admitted she had seen the statement before. Id., at ¶71. The court of appeals

stated that “in Talbert, the error was not necessarily in the jury’s failure to hear the

tape itself, but in the failure to see the witness when she was actually being

impeached.” Id., at ¶70.

{¶19} At Perkin’s second trial, the jury was able to hear the witness

describe her prior inconsistent statements and was also able to observe her

reactions to being confronted with the letters containing those statements. We find

that the trial court’s evidentiary ruling did not violate Perkin’s constitutional rights

to fully confront a witness nor did it cause any material prejudice. The trial

court’s decision was not an abuse of discretion and Perkin’s first assignment of

error is overruled.

{¶20} In his second assignment of error, Perkins states that the trial court

erred because the judgment entry did not state who was to receive the restitution.

We agree that the judgment entry did not specify the restitution recipients.

{¶21} R.C. 2929.18 provides the guidelines for financial sanctions and the

payment of restitution, and states that “(A) *** [f]inancial sanctions that may be

imposed pursuant to this section include, but are not limited to, the following: (1)

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Restitution by the offender to the victim of the offender’s crime *** in an amount

based on the victim’s economic loss.” The statute further specifies that “the

amount the court orders as restitution shall not exceed the amount of the economic

loss suffered by the victim as a direct and proximate result of the commission of

the offense.” R.C. 2929.18(A)(1). State v. Portentoso, 173 Ohio App.3d 297,

2007-Ohio-5490, 878 N.E.2d 76, ¶8; State v. Didion, 173 Ohio App.3d 130, 2007-

Ohio-4494, 877 N.E.2d 725, ¶16. Prior to its amendment in 2004, R.C.

2929.18(A)(1) also allowed restitution to be paid to third parties, including

insurance companies. See State v. Kreischer, 109 Ohio St.3d.391, 2006-Ohio-

2706, 848 N.E.2d 496. After the statute was amended, payment of restitution was

limited to those named in the statute, including the victim, the adult probation

department serving the county on behalf of the victim, the clerk of courts, or

another agency designated by the court. State v. Bartholomew, 119 Ohio St.3d

359, 363, 2008-Ohio-4080, 894 N.E.2d 307, 311, ¶8; R.C. 2929.18(A)(1).

{¶22} At the sentencing hearing, the trial court awarded specific amounts

of restitution to be paid to three recipients. In the judgment entry, the trial court

only ordered the total amount of restitution to be paid and failed to specify the

recipients that it had named at the sentencing hearing.

{¶23} In another case involving restitution, the trial court also ordered

restitution at the sentencing hearing, but did not specify the exact amount or the

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recipients in its final orders. See State v. DeLong, 2nd Dist. No. 20656, 2005-

Ohio-1905. The Second District Court of Appeals stated:

It is well established that the court speaks only through its journal entries, not by its oral pronouncements. Schenley v. Karth (1953), 160 Ohio St. 109, 113 N.E.2d 625. It is undisputed that the termination entry herein is blank as to the amount of restitution. The court's oral pronouncement is insufficient. Not only is the amount of restitution not journalized, but the Clerk of Court has no mechanism nor record upon which to determine to whom the restitution is to be paid.

DeLong, at ¶18. The court further specified that “at a minimum, the total amount

must be journalized and a cogent record must exist as to whom said amount shall

be distributed.” Id, at ¶19.

{¶24} Perkin’s was aware of the intended recipients and the amounts due

each recipient because the trial court ordered the payment of restitution at his

sentencing hearing. However, the judgment entry failed to accurately reflect what

occurred at the sentencing hearing and did not specify the eligible recipients of the

restitution. Therefore, Perkin’s second assignment of error is sustained and the

matter is remanded to the trial court.

{¶25} The judgment of the Seneca County Court of Common Pleas is

affirmed in part and reversed in part, and remanded for further proceedings

consistent with this opinion.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

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PRESTON, P.J. and SHAW, J., concur.

/jlr

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