[Cite as State v. Schreckengost, 2012-Ohio-347.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
BRION SCHRECKENGOST
Defendant-Appellant
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.
Case No. 2011CA00163
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2011CR1974(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BERNARD L. HUNT PROSECUTING ATTORNEY, 2395 McGinty Rd. NW. STARK COUNTY, OHIO North Canton, Ohio 44720
By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Hoffman, J.
(¶1) Defendant-appellant Brion Schreckengost appeals his conviction entered
by the Stark County Court of Common Pleas on one count of complicity to receiving
stolen property. The State of Ohio is plaintiff-appellee.
STATEMENT OF THE CASE AND FACTS
(¶2) On February 14, 2011, Appellant was indicted on one count of complicity
to receiving stolen property, in violation of R.C. 2923.03(A)(2) or (3).
(¶3) During an investigation, Pam Nordquist, Appellant’s live-in girlfriend, was
observed entering several stores and engaging in shoplifting. On December 22, 2010,
Nordquist was apprehended for shoplifting at Sears in Jackson Township, Ohio. When
Alliance Police Department Detectives executed a search warrant at the apartment
Appellant shared with Nordquist they found the apartment filled with clothing, candles,
bottles of men’s cologne, flash drives, crafting items, and other miscellaneous goods
with the price tags and/or store electronic sensors still intact. The store tags indicated
the items were from Sears, J.C. Penney’s and Pat Catan’s. The items were found in
every room of the apartment. According to Detective Jim Jones, the items “dominated”
the bedroom. The detectives also found shopping lists with clothing items and sizes
written thereon. The figure inscribed next to each item was $50.00.
(¶4) Appellant and Nordquist were arrested and taken to the Alliance Police
Department for questioning. Nordquist admitted to the detectives she had shoplifted the
items found in the apartment, and enjoyed shoplifting because it gave her a “rush”. She
explained she would take orders over the internet for items, steal the same items and
then charge fifty dollars for the items on the list. (¶5) Appellant told the detectives he had been with Nordquist on two occasions
while she shoplifted, but he did not like going and did not like what she was doing. He
acknowledged he knew what she was doing, and he took some pants and shirts from
her, cautioning her not to get caught.
(¶6) Additionally, Detectives found text messages on Nordquist’s phone to
Appellant such as “J.C. Penney was a bust; it wasn’t crowded enough.”
(¶7) The total value of the items taken from Sears approximated $700 to
$1000. The value of the items stolen from J.C. Penney’s approximated $990.00, and the
Pat Catan’s stolen items’ value approximated $1,500.00.
(¶8) The matter proceeded to a jury trial on June 21, 2011. The jury returned a
verdict of guilty to the charge of complicity to receiving stolen property. The trial court
sentenced Appellant to the maximum sentence of twelve months in prison.
(¶9) Appellant now appeals, assigning as error:
(¶10) “I. THE CONVICTION OF THE APPELLANT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.
(¶11) “II. THE APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.”
I.
(¶12) 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.
(¶13) We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,
certiorari denied (1990), 498 U.S. 881. The trier of fact “has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–
Ohio–260.
(¶14) Appellant was convicted of complicity to receiving stolen property, in
violation of R.C. 2923.03(A), which reads:
(¶15) “(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(¶16) “***
(¶17) “(2) Aid or abet another in committing the offense;
(¶18) “(3) Conspire with another to commit the offense in violation of section
2923.01 of the Ohio Revised Code.”
(¶19) Receiving stolen property is defined in R.C. 2913.51(A):
(¶20) “(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.”
(¶21) Appellant admitted he knew Nordquist, whom he lived with, obtained a
multitude of clothing and other items through the commission of thefts from Sears, J.C. Penney and Pat Catan’s. Their residence was filled with stolen items, most with price
tags and/or electronic store monitoring devices still attached. While he may have had
limited involvement in the actual commission of the theft offenses, he knew or had
reason to know the items Nordquist gave him, including pants and shirts, were stolen
property.
(¶22) We find Appellant’s conviction for complicity to receiving stolen property is
supported by the manifest weight of the evidence. The first assignment of error is
overruled.
II.
(¶23) In the second assignment of error, Appellant maintains he was denied the
effective assistance of trial counsel as his counsel failed to request a motion for
acquittal, failed to call witnesses on his behalf, failed to object to an instruction on aiding
and abetting and failed to object to the valuation of the items found in the apartment.
(¶24) An ineffective assistance of counsel claim requires a showing that
counsel's performance was deficient and the deficient performance was prejudicial.
Strickland v. Washington (1984), 466 U.S. 668. Deficient performance requires a
“showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Prejudice requires a
“showing that counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Id. When determining whether counsel's performance
was deficient, “a court must indulge a strong presumption that counsel's conduct falls
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[Cite as State v. Schreckengost, 2012-Ohio-347.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
BRION SCHRECKENGOST
Defendant-Appellant
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.
Case No. 2011CA00163
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2011CR1974(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BERNARD L. HUNT PROSECUTING ATTORNEY, 2395 McGinty Rd. NW. STARK COUNTY, OHIO North Canton, Ohio 44720
By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Hoffman, J.
(¶1) Defendant-appellant Brion Schreckengost appeals his conviction entered
by the Stark County Court of Common Pleas on one count of complicity to receiving
stolen property. The State of Ohio is plaintiff-appellee.
STATEMENT OF THE CASE AND FACTS
(¶2) On February 14, 2011, Appellant was indicted on one count of complicity
to receiving stolen property, in violation of R.C. 2923.03(A)(2) or (3).
(¶3) During an investigation, Pam Nordquist, Appellant’s live-in girlfriend, was
observed entering several stores and engaging in shoplifting. On December 22, 2010,
Nordquist was apprehended for shoplifting at Sears in Jackson Township, Ohio. When
Alliance Police Department Detectives executed a search warrant at the apartment
Appellant shared with Nordquist they found the apartment filled with clothing, candles,
bottles of men’s cologne, flash drives, crafting items, and other miscellaneous goods
with the price tags and/or store electronic sensors still intact. The store tags indicated
the items were from Sears, J.C. Penney’s and Pat Catan’s. The items were found in
every room of the apartment. According to Detective Jim Jones, the items “dominated”
the bedroom. The detectives also found shopping lists with clothing items and sizes
written thereon. The figure inscribed next to each item was $50.00.
(¶4) Appellant and Nordquist were arrested and taken to the Alliance Police
Department for questioning. Nordquist admitted to the detectives she had shoplifted the
items found in the apartment, and enjoyed shoplifting because it gave her a “rush”. She
explained she would take orders over the internet for items, steal the same items and
then charge fifty dollars for the items on the list. (¶5) Appellant told the detectives he had been with Nordquist on two occasions
while she shoplifted, but he did not like going and did not like what she was doing. He
acknowledged he knew what she was doing, and he took some pants and shirts from
her, cautioning her not to get caught.
(¶6) Additionally, Detectives found text messages on Nordquist’s phone to
Appellant such as “J.C. Penney was a bust; it wasn’t crowded enough.”
(¶7) The total value of the items taken from Sears approximated $700 to
$1000. The value of the items stolen from J.C. Penney’s approximated $990.00, and the
Pat Catan’s stolen items’ value approximated $1,500.00.
(¶8) The matter proceeded to a jury trial on June 21, 2011. The jury returned a
verdict of guilty to the charge of complicity to receiving stolen property. The trial court
sentenced Appellant to the maximum sentence of twelve months in prison.
(¶9) Appellant now appeals, assigning as error:
(¶10) “I. THE CONVICTION OF THE APPELLANT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.
(¶11) “II. THE APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.”
I.
(¶12) 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.
(¶13) We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,
certiorari denied (1990), 498 U.S. 881. The trier of fact “has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–
Ohio–260.
(¶14) Appellant was convicted of complicity to receiving stolen property, in
violation of R.C. 2923.03(A), which reads:
(¶15) “(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(¶16) “***
(¶17) “(2) Aid or abet another in committing the offense;
(¶18) “(3) Conspire with another to commit the offense in violation of section
2923.01 of the Ohio Revised Code.”
(¶19) Receiving stolen property is defined in R.C. 2913.51(A):
(¶20) “(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.”
(¶21) Appellant admitted he knew Nordquist, whom he lived with, obtained a
multitude of clothing and other items through the commission of thefts from Sears, J.C. Penney and Pat Catan’s. Their residence was filled with stolen items, most with price
tags and/or electronic store monitoring devices still attached. While he may have had
limited involvement in the actual commission of the theft offenses, he knew or had
reason to know the items Nordquist gave him, including pants and shirts, were stolen
property.
(¶22) We find Appellant’s conviction for complicity to receiving stolen property is
supported by the manifest weight of the evidence. The first assignment of error is
overruled.
II.
(¶23) In the second assignment of error, Appellant maintains he was denied the
effective assistance of trial counsel as his counsel failed to request a motion for
acquittal, failed to call witnesses on his behalf, failed to object to an instruction on aiding
and abetting and failed to object to the valuation of the items found in the apartment.
(¶24) An ineffective assistance of counsel claim requires a showing that
counsel's performance was deficient and the deficient performance was prejudicial.
Strickland v. Washington (1984), 466 U.S. 668. Deficient performance requires a
“showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Prejudice requires a
“showing that counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Id. When determining whether counsel's performance
was deficient, “a court must indulge a strong presumption that counsel's conduct falls
within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’”Id. at 689.
(¶25) Assuming, arguendo, counsel’s performance was deficient, we find
Appellant has not demonstrated the prejudicial effect of said error deprived Appellant of
a fair trial.1 Appellant himself admitted he knew of Nordquist’s activities, and the
evidence at trial supports his knowledge. Further, he admitted Nordquist gave him
pants and shirts he knew or had reason to know had been shoplifted.
(¶26) The second assignment of error is overruled.
(¶27) Appellant’s conviction in the Stark County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ John W. Wise _____________________ HON. JOHN W. WISE
1 Appellant does not identify who would be possible witnesses on Appellant’s behalf let alone speculate on what the testimony from such witnesses would be. IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : BRION SCHRECKENGOST : : Defendant-Appellant : Case No. 2011CA00163
For the reasons stated in our accompanying Opinion, Appellant’s conviction in
the Stark County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________ HON. JOHN W. WISE