[Cite as State v. Spires , 2011-Ohio-3661.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA10 : vs. : Released: July 14, 2011 : JACK R. SPIRES, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:
Michael L. Barr, Little & Sheets, LLP, Pomeroy, Ohio, for Appellant.
C. Jeffrey Adkins, Gallia County Prosecuting Attorney, Gallipolis, Ohio, for Appellee. _____________________________________________________________
McFarland, J.:
{¶1} Appellant, Jack Spires, appeals from his conviction in the Gallia
County Court of Common Pleas after a jury found him guilty of four counts
of burglary in violation of R.C. 2911.12, felonies of the second degree, and
one count of breaking and entering in violation of R.C. 2911.13, a fifth
degree felony. On appeal, Appellant contends that 1) the trial court
committed plain error in permitting hearsay testimony to be entered into the
record; 2) the trial court committed plain error in permitting unauthenticated
pictures and objects to be entered as evidence; 3) the trial court committed Gallia App. No. 10CA10 2
plain error in not issuing a jury instruction that no adverse inferences were to
be drawn from defendant’s exercise of his right to not testify; 4) he received
ineffective assistance of counsel; 5) his conviction was against the manifest
weight of the evidence; 6) the State failed to produce sufficient evidence to
sustain convictions of burglary and breaking and entering; and 7) the
cumulative error in the trial deprived him of a fair trial.
{¶2} We cannot conclude that the trial court erred or abused its
discretion in admitting certain testimony, pictures and objects and, as such,
Appellant’s first and second assignments of error are overruled.
Additionally, as we find no error, plain or otherwise, related to the
instructions provided to the jury, Appellant’s third assignment of error is
overruled. Likewise, based upon our determination that Appellant did not
receive ineffective assistance of counsel, Appellant’s fourth assignment of
error is overruled.
{¶3} Further, in light of our determination that Appellant’s
convictions were supported by sufficient evidence and were not against the
manifest weight of the evidence, Appellant’s fifth and sixth assignments of
error are overruled. Finally, as Appellant has failed to demonstrate any
error, let alone multiple errors, his seventh assignment is overruled. Having Gallia App. No. 10CA10 3
overruled all of Appellant’s assignments of error, we affirm the judgment of
the trial court.
FACTS
{¶4} A review of the record reveals that on or about October 15, 2009,
Appellant was stopped in Gallia County, while driving a white vehicle
owned by Jessica Duncan, who was a passenger in the vehicle. Appellant
was stopped after a high speed chase spanning twelve to fourteen miles.
Once stopped, Ms. Duncan, the owner of the vehicle, provided consent to
search the vehicle. There in, law enforcement recovered various items,
including computers, tools, a shotgun, a purse, and jewelry, later determined
to be stolen property, which was linked to multiple reported burglaries that
had occurred throughout the day.
{¶5} Appellant and Ms. Duncan were arrested. Although Appellant
refused to provide a statement, Ms. Duncan provided two taped statements
to law enforcement. In her second statement, she essentially stated that she
and Appellant had been riding around all afternoon and that while she
remained in the vehicle, Appellant burglarized several residences and broke
into an outbuilding. She attributed the pair’s activities to their drug
addictions and stated that they needed money to buy drugs. Gallia App. No. 10CA10 4
{¶6} A criminal complaint was filed against Appellant on October 19,
2009, and Appellant was subsequently indicted on four counts of burglary
and one count of breaking and entering. Appellant pled not guilty to the
charges and the matter proceeded to a jury trial on May 18, 2010. At trial,
the State’s primary witness was Jessica Duncan. The record reveals that Ms.
Duncan was offered a plea agreement in exchange for testifying against
Appellant at trial. The State also introduced multiple other witnesses,
including the crime victims, neighbors who were witnesses to the events, as
well as law enforcement involved in Appellant’s stop and investigation of
the crimes.
{¶7} The jury found Appellant guilty of all four counts of burglary
and the breaking and entering count. The trial court sentenced Appellant to
eight year prison terms on each burglary count and a twelve month term on
the breaking and entering count, to be served consecutively for an aggregate
prison term of thirty three years. Appellant was also ordered to pay
restitution in the amount of $1,078.50. It is from this conviction and
sentence that Appellant now brings his timely appeal, assigning the
following errors for our review. Gallia App. No. 10CA10 5
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING HEARSAY TESTIMONY TO BE ENTERED ONTO THE RECORD.
II. THE TRIAL COURRT [SIC] COMMITTED PLAIN ERROR IN PERMITTING UNAUTHENTICATED PICTURES AND OBJECTS TO BE ENTERED AS EVIDENCE.
III. THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT ISSUING A JURY INSTRUCTION THAT NO ADVERSE INFERENCES WERE TO BE DRAWN FROM DEFENDANT’S EXERCISE OF HIS RIGHT TO NOT TESTIFY.
IV. DEFENDANT JACK SPIRES RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR THE FOLLOWING REASONS:
A. HIS ATTORNEY REFUSED TO ALLOW HIM TO TESTIFY TO ALIBI OF ON HIS OWN BEHALF, THEREBY LEAVING THE STATE’S EVIDENCE UNCONTESTED;
B. HIS ATTORNEY FAILED TO MOVE THE COURT FOR AN ACQUITAL [SIC] PURSUANT TO OHIO CRIMINAL RULE 29.
V. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
VI. THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE TO SUSTAIN CONVICTIONS OF BURGLARY AND BREAKING AND ENTERING.
VII. THE CUMULATIVE ERROR IN THE TRIAL DEPRIVED THE DEFENDANT OF A FAIR TRIAL.” Gallia App. No. 10CA10 6
ASSIGNMENT OF ERROR I
{¶8} In his first assignment of error, Appellant contends that the trial
court committed plain error in permitting hearsay testimony to be entered
into the record. Under this assignment of error, Appellant challenges four
specific instances of testimony, which he contends constituted hearsay. Two
of the instances were objected to below and two were not. Thus, our review
of these statements will involve different standards of review.
{¶9} “The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court[.]” State v. Haines, 112 Ohio St.3d 393,
2006-Ohio-6711, 860 N.E.2d 91, at ¶ 50, citing State v. Robb, 88 Ohio St.3d
59, 68, 2000-Ohio-275, 723 N.E.2d 1019. An abuse of discretion connotes
more than an error of judgment; it implies that the trial court's attitude was
arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶10} Evid.R. 801(C) defines “hearsay” as “a statement, other than
one made by the declarant while testifying at trial or hearing, offered in
evidence to prove the truth of the matter asserted.” A witness is barred from
testifying as to the statements made by another only when the statement is
offered to prove the truth of the matter asserted in the statement, and only
where the statement falls outside any exceptions to the rule against hearsay Gallia App. No. 10CA10 7
as set forth in Evid.R. 803 and 804. See State v. Davis (1991), 62 Ohio St.3d
326, 344, 581 N.E.2d 1362. Evid.R. 802 contains the general prohibition
against the admission of hearsay and provides: “Hearsay is not admissible
except as otherwise provided by the Constitution of the United States, by the
Constitution of the State of Ohio, by statute enacted by the General
Assembly not in conflict with a rule of the Supreme Court of Ohio, by these
rules, or by other rules prescribed by the Supreme Court of Ohio.”
{¶11} We will first address the statements Appellant challenges that
he objected to below. Appellant objects to a statement provided by Monica
Helms in which Ms. Helms stated that she received a call at work from her
mother informing her that her house alarm was going off. Appellant claims
that this statement constituted inadmissible hearsay. The State contends that
the statement was not offered for the truth of the matter asserted, but rather
was offered for the effect on the listener, to show why she went home and
discovered items had been stolen, and is therefore not considered to be
hearsay under Evid.R. 801(C). We agree. See, State v. Wente (Cuyahoga
App. No. 85501, 2005-Ohio-4825 at ¶ 8-10 (statement by burglary victim
that she received a call from her mother informing her that her house had
been broken into was not offered for the truth of the matter asserted and
therefore was not inadmissible hearsay). Gallia App. No. 10CA10 8
{¶12} Appellant also objected at trial to testimony provided by Lisa
Harmon in which Harmon described the various items of property stolen
from each house, as identified by Ms. Duncan during the course of the
investigation. The State contends that this testimony simply duplicated the
direct testimony of Ms. Duncan, which had already been entered into the
record and had been heard by the jury. As such, the State contends that if
the statements were admitted in error, such error was harmless. Based upon
the following, we agree with the State.
{¶13} Not only were the details of Harmon’s testimony already in
evidence by virtue of Ms. Duncan’s testimony, Harmon’s testimony served
to illustrate the steps taken during the course of her investigation. “[I]t is
well-settled that statements offered by police officers to explain their
conduct while investigating a crime are not hearsay because they are not
offered for their truth, but rather, are offered as an explanation of the process
of investigation.” State v. Warren Cuyahoga App. No. 83823, 2004-Ohio-
5599 at ¶ 46; citing State v. Price (1992), 80 Ohio App.3d 108, 110, 608
N.E.2d 1088; State v. Braxton (1995), 102 Ohio App.3d 28, 49, 656 N.E.2d
970; State v. Blevins (1987), 36 Ohio App.3d 147, 149, 521 N.E.2d 1105.
Thus, we find no error related to the admission of these statements. Gallia App. No. 10CA10 9
{¶14} Appellant challenges two additional statements to which he did
not object below. As Appellant failed to object to the admission of the
testimony below, our review is limited to a plain error analysis. For a
reviewing court to find plain error: (1) there must be an error, i.e., “a
deviation from a legal rule;” (2) the error must be plain, i.e., “an ‘obvious'
defect in the trial proceedings;” and (3) the error must have affected
“substantial rights,” i.e., it must have affected the outcome of the
proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759
N.E.2d 1240. Furthermore, the Supreme Court of Ohio has admonished
courts that notice of plain error under Crim.R. 52(B) is to be taken “with the
utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Id., quoting State v. Long (1978), 53 Ohio
St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.
{¶15} Appellant first objects to a statement provided by Sergeant Eric
Werry wherein the sergeant testified that one of the victims, Mr. Saunders,
told him he accidentally left his back door unlocked. Appellant objects to
another statement of Sergeant Werry wherein the sergeant testified regarding
information he had received from a Jackson County deputy during his
investigation. Specifically, Sergeant Werry testified that he contacted
Jackson County when he discovered that the tags to the suspect white Gallia App. No. 10CA10 10
vehicle were linked with Ms. Duncan. He testified that Deputy Bartles with
Jackson County informed him “he was working similar cases with that same
vehicle and them two people.” The State contends that these statements
were not offered for the truth of the matter asserted and instead were offered
to establish the investigative steps taken by the sergeant in connection with
the burglary investigations. We agree with the State.
{¶16} As set forth above, “it is well-settled that statements offered by
police officers to explain their conduct while investigating a crime are not
hearsay because they are not offered for their truth, but rather, are offered as
an explanation of the process of investigation.” State v. Warren, supra, at ¶
46. Further, considering that our standard of review under this portion of the
assignment of error is plain error, we note that Mr. Saunders himself also
testified regarding the door being unlocked. Thus, this evidence would have
properly been before the jury whether Sergeant Werry’s testimony had been
admitted or not. As such, the inclusion of this evidence did not affect the
outcome of the proceedings. Accordingly, Appellant’s first assignment of
ASSIGNMENT OF ERROR II
{¶17} In his second assignment of error, Appellant contends that the
trial court committed plain error in permitting unauthenticated pictures and Gallia App. No. 10CA10 11
objects to be entered as evidence. The record reflects that Appellant’s
counsel objected to the admission of Exhibits 13 and 14, and that the trial
court admitted those exhibits over the objection. Exhibit 13 was a
photograph of a Harley Davidson watch and ring recovered from the vehicle
Appellant was driving when he was arrested. Exhibit 14 consisted of the
actual watch and ring. As Appellant’s counsel objected to the admission of
these items of evidence below, we conclude that our standard of review is
one of abuse of discretion, rather than plain error.
{¶18} The admission of photographic evidence is a matter within the
sound discretion of the trial court. State v. Awkal (1996), 76 Ohio St.3d 324,
333, 1996-Ohio-395, 667 N.E.2d 960; see, also, State v. Wray, Gallia App.
No. 00CA08, 2001-Ohio-2356. Thus, we will not reverse a decision to
admit photographic evidence unless we find that decision to be an abuse of
discretion. An abuse of discretion involves more than an error of judgment;
it connotes an attitude on the part of the court that is unreasonable,
unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp.
Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24. When
applying the abuse of discretion standard, a reviewing court is not free to
merely substitute its judgment for that of the trial court. In re Jane Doe 1
(1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181. Gallia App. No. 10CA10 12
{¶19} Evid.R. 901 governs authentication and identification of
evidence and provides in (A) that “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its
proponent claims.” The rule further provides as follows:
“(B) Illustrations
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.”
{¶20} Thus, the requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.
Evid.R. 901(A), see, also, State v. Wray, supra; citing State v. Aliff (Apr. 12,
2000), Lawrence App. No. 99CA8, 2000 WL 378370. In Wray, we noted
that “[a] photograph is authenticated or identified by evidence establishing
that it is a fair and accurate representation of that which it is purported to
depict. Citing, State v. Hill (1967), 12 Ohio St.2d 88, 90, 232 N.E.2d 394.
Furthermore, as noted in Wray, “no chain of evidence is required when
admitting photographs because they normally are not susceptible to
tampering, alteration or substitution when properly authenticated.” Wray, Gallia App. No. 10CA10 13
supra; citing State v. Clark (May 17, 1988), Pike App. No. 408, 1988 WL
50506.
{¶21} In the case sub judice, Vicki Mulholand testified that the
photograph labeled as Exhibit 13 offered into evidence fairly and accurately
depicted the Harley Davidson watch and ring she had seen her son wear on
more than one occasion.1 The State then followed with Exhibit 14, which
was the actual watch and ring recovered from the vehicle. Ms. Mulholand
again testified that it looked like her son Justin’s watch and ring, saying that
it “looks just exactly like the ones he owned.” Appellant contended below
that because the watch and ring were not engraved or personalized, and
could have been bought by anyone at a Harley shop that they were
“unauthenticateable.” Appellant further claims that Ms. Mulholland
admitted “Exhibits 13 and 14, might not have come from her house.” The
State counters by directing our attention to Ms. Mulholands actual testimony
on cross examination, which was as follows:
“Q. * * * Uh, I apologize for picking on the ring and stuff, but that is something, the ring and the watch, those are things that you can buy at the Harley shop aren’t they?
A. Yes.
1 To be specific, Ms. Mulholand testified, when asked what Exhibit 13 appeared to be a picture of, that “it looks like my son’s watch and ring.” Gallia App. No. 10CA10 14
Q. So what’s here in the envelope could have come from a Harley shop, not from your house?
A. I suppose.”
{¶22} Given the evidence presented, the trial court did not abuse its
discretion by admitting the photographs, or the actual items, over Appellant's
objection concerning the proper foundation. In our view, Ms. Mulholand
was a witness with knowledge who testified that the items of evidence in
question were what they claimed to be, in accordance with the requirements
of Evid.R. 901. Further, her acknowledgment that these particular items
could possibly also be purchased at a Harley shop do not diminish her
opinion that these particular items looked exactly like the ones she had seen
her son wear on prior occasions and which were missing from her house.
Thus, Appellant’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶23} In his third assignment of error, Appellant contends that the
trial court committed plain error in not issuing a jury instruction that no
adverse inferences were to be drawn from his exercise of his right not to
testify. The State responds by pointing out that the trial court gave a special
instruction regarding Appellant’s failure to testify and, as such, did not err.
{¶24} “A trial judge has the constitutional obligation, upon proper
request, to minimize the danger that the jury will give evidentiary weight to Gallia App. No. 10CA10 15
a defendant's failure to testify. Upon proper request, defendant has a right,
under the privilege against compulsory self-incrimination guaranteed by the
Fifth Amendment, to have the judge instruct the jury that the defendant's
failure to testify cannot be considered for any purpose.” State v. Fanning
(1982), 1 Ohio St.3d 19, 437 N.E.2d 583, paragraph one of the syllabus,
following Carter v. Kentucky (1981), 450 U.S. 288, 101 S.Ct. 1112; See,
also State v. Mullins, Montgomery App No. 21277, 2007-Ohio-1051 at ¶ 17;
State v. Hill (Aug. 5, 1994), Washington App. No. 93CA35, 1994 WL
419985. (Emphasis added).
{¶25} As indicated above, Carter requires such an instruction only
“upon proper request.” State v. Hill; citing State v. Fanning at 21. As in
Fanning, here, a review of the record indicates that Appellant did not file a
written special jury instruction request at the close of the evidence pursuant
to Crim.R. 30, which requires that the request must be in writing and made
at the close of the evidence or at such earlier time as the court reasonably
directs in order to be proper. As such, Appellant was not entitled to a special
instruction under Carter, concerning the jury's consideration of his failure to
testify.
{¶26} Appellant contends that the trial court committed plain error in
failing to provide a special instruction to the jury despite his failure to Gallia App. No. 10CA10 16
request a special instruction. As set forth above, for a reviewing court to
find plain error: (1) there must be an error, i.e., “a deviation from a legal
rule”; (2) the error must be plain, i.e., “an ‘obvious' defect in the trial
proceedings”; and (3) the error must have affected “substantial rights,” i.e., it
must have affected the outcome of the proceedings. State v. Barnes, supra,
at 27. Furthermore, the Supreme Court of Ohio has admonished courts that
notice of plain error under Crim.R. 52(B) is to be taken “with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Id., quoting State v. Long, supra, at paragraph three
of the syllabus.
{¶27} Despite the fact that Appellant was not entitled to a special
instruction, the trial court instructed the jury as follows:
“Now it is not necessary that the defendant take the witness stand in his own
defense. He has a Constitutional right not to testify. The fact that the
defendant did not testify must not be considered for any purpose.”
Thus, we find no error, plain or otherwise, in the instructions provided by
the trial court. Accordingly, Appellant’s third assignment of error is
overruled. Gallia App. No. 10CA10 17
ASSIGNMENT OF ERROR IV
{¶28} In his fourth assignment of error, Appellant contends that he
received ineffective assistance of counsel. Specifically, Appellant argues
that his counsel was ineffective in refusing to allow him to testify to an alibi
or testify on his own behalf, and was ineffective for failing to move for an
acquittal pursuant to Crim.R. 29. The State disagrees, arguing that
Appellant has failed to demonstrate how his counsel’s performance was
deficient or prejudiced him.
{¶29} In order to prevail on a claim of ineffective assistance of
counsel, an appellant must show that (1) his counsel's performance was
deficient, and (2) the deficient performance prejudiced his defense so as to
deprive him of a fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-
Ohio-5084, 854 N.E.2d 1038, at ¶ 205, citing Strickland v. Washington
(1984), 466 U.S. 668, 687, 104 S.Ct. 2052. To establish deficient
performance, an appellant must show that trial counsel's performance fell
below an objective level of reasonable representation. State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 95. To establish
prejudice, an appellant must show a reasonable probability exists that, but
for the alleged errors, the result of the proceeding would have been different.
Id. “ ‘In Ohio, a properly licensed attorney is presumed competent and the Gallia App. No. 10CA10 18
appellant bears the burden to establish counsel's ineffectiveness.’ ” State v.
Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶ 20,
quoting State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473;
State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, 524 N.E.2d 476, cert.
den. Hamblin v. Ohio (1988) 488 U.S. 975, 109 S.Ct. 515.
{¶30} Appellant first asserts that his counsel was ineffective for
refusing to allow him to testify to an alibi, or on his own behalf, thereby
leaving the State’s evidence uncontested. We first note that “[g]enerally,
decisions to call witnesses is within the purview of defense counsel's trial
strategy and is not considered deficient performance absent a showing of
prejudice.” State v. Jackson, Lawrence App. No. 97CA2, 1997 WL 749480;
citing, State v. Hunt (1984), 20 Ohio App.3d 310, 312, 486 N.E.2d 108.
Further, as noted by the State, Appellant has offered no evidence to
demonstrate that his trial counsel actually blocked him from testifying, either
on his own behalf or with regard to an alibi.2 To the extent that this
occurred, it must have occurred off the record. “We may not consider
matters outside the record on a direct appeal. Instead, an appellant may raise
matters outside the record by filing a postconviction relief petition in the
trial court.” State v. Hoke, Lawrence App. No. 10CA32, 2011-Ohio-1221 at
2 In addition, there was no notice of alibi filed in the record, in accordance with Crim.R. 12.1, to even indicate that Appellant had an alibi. Gallia App. No. 10CA10 19
¶ 10; See, e.g., State v. Nichols (1984), 11 Ohio St.3d 40, 42, 463 N.E.2d
375. Accordingly, we reject the first argument advanced under Appellant’s
fourth assignment of error.
{¶31} Next, Appellant asserts that his counsel was ineffective for
failing to move for an acquittal pursuant to Crim.R. 29. As we discuss later
in the resolution of Appellant’s fifth assignment of error, the State presented
sufficient evidence to sustain Appellant’s convictions for burglary and
breaking and entering. Therefore, a Crim.R. 29 motion for acquittal would
have been fruitless in this case. As a result, trial counsel's failure to move for
acquittal under Crim.R. 29 did not constitute ineffective assistance of
counsel. State v. Norman, Ross App. Nos. 08CA3059, 08CA3066, 2009-
Ohio-5458 at ¶ 72; See, also, State v. Murphy, Washington App. No.
03CA12, 2003-Ohio-4939, at ¶ 21 (citations omitted).
{¶32} Accordingly, Appellant’s fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR V
{¶33} In his fifth assignment of error, Appellant contends that his
conviction was against the manifest weight of the evidence. “The legal
concepts of sufficiency of the evidence and weight of the evidence are both
quantitatively and qualitatively different.” State v. Thompkins (1997), 78 Gallia App. No. 10CA10 20
Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency tests the
adequacy of the evidence, while weight tests “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other[.]” State v. Sudderth, Lawrence App. No 07CA38,
2008-Ohio-5115, at ¶ 27, quoting Thompkins at 387.
{¶34} “Even when sufficient evidence supports a verdict, we may
conclude that the verdict is against the manifest weight of the evidence,
because the test under the manifest weight standard is much broader than
that for sufficiency of the evidence.” State v. Smith, Pickaway App. No.
06CA7, 2007-Ohio-502 at ¶ 41. When determining whether a criminal
conviction is against the manifest weight of the evidence, we “will not
reverse a conviction where there is substantial evidence upon which the
[trier of fact] could reasonably conclude that all the elements of an offense
have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38
Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. See, also,
Smith at ¶ 41. We “must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial granted.” Smith at ¶ 41, Gallia App. No. 10CA10 21
citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d
814; State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
However, “[o]n the trial of a case, * * * the weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of the facts.”
State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212 at paragraph one
{¶35} Appellant was convicted of one count of burglary under R.C.
2911.12(A)(1) and three counts of burglary under R.C. 2911.12(A)(2). R.C.
2911.12(A)(1) and (2) provide as follows:
“(A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense;
(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense[.]” (Emphasis added).
Appellant was also convicted of one count of breaking and entering, in
violation of R.C. 2911.13(A), which provides that “[n]o person by force,
stealth, or deception, shall trespass in an unoccupied structure, with purpose Gallia App. No. 10CA10 22
to commit therein any theft offense, as defined in section 2913.01 of the
Revised Code, or any felony.”
{¶36} Here, the State presented several witnesses in support of their
theory that Appellant burglarized four houses. First and foremost, Jessica
Duncan testified on behalf of the State. Ms. Duncan was Appellant’s
girlfriend and accomplice in the crimes. The State agreed to allow her to
plead to a charge of complicity in exchange for her testimony against
Appellant at trial. Ms. Duncan testified that she was in the car with
Appellant when he drove her car around Gallia County on the day of the
crime spree. She testified that the two of them had drug problems and they
were trying to come up with money to buy drugs. She testified that she
remained in the car while Appellant entered several residences and one
outbuilding and took various different items throughout the day. Ms.
Duncan further testified that after being stopped, she provided law
enforcement consent to search her vehicle. She also gave a statement to law
enforcement.3
{¶37} The vast majority of Appellant’s argument under this
assignment of error is premised on an assertion that Ms. Duncan’s testimony
3 The record indicates that Ms. Duncan provided two taped interviews on the day she was arrested. Her testimony indicates that she provided a second statement because the first statement she provided was not truthful, explaining that she was scared that she was in trouble. Both of these taped interviews were played for the jury. Gallia App. No. 10CA10 23
was not credible and should have been “zero credibility” by the jury.
However, the weight to be given evidence and the credibility to be afforded
testimony are issues to be determined by the trier of fact. State v. Frazier, 73
Ohio St.3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000, citing State v.
Grant, 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620 N.E.2d 50. The fact
finder “is best able to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Thus, we will only interfere
if the fact finder clearly lost its way and created a manifest miscarriage of
justice. Here, the jury chose to believe Ms. Duncan’s testimony, as well as
the testimony of the State’s other witnesses, which will be more fully
discussed herein, and we will not substitute our judgment for that of the jury
under these circumstances.
{¶38} Appellant further argues under this assignment of error that
aside from Ms. Duncan’s testimony, which he deems unreliable, the State’s
evidence was “indirect, circumstantial, and of little probative value.”
Appellant argues that absent Ms. Duncan’s testimony, the State could not
place him inside any of the occupied structures. To the contrary, a review of
the trial transcript reveals that the State presented testimony from Haskell Gallia App. No. 10CA10 24
Saunders, Monica Helms, Teresa Reynolds, Kendra Bence, Phyllis Hash,
Vicki Mulholand, John Manley, Oak Hill Patrolman Chris Gruber, Sergeant
Eric Werry, and Detective Lisa Harmon. Haskell Saunders, the victim of
burglary count 1, testified that he returned to his home on October 15, 2009,
to find lights on, doors unlocked, and a shotgun and his wife’s purse were
missing. Monica Helms, the victim of burglary count 2, testified that after
receiving a phone call from her mother telling her that her house alarm was
going off, she went home to find her playstation 2 was missing. Teresa
Reynolds, Helms’ aunt who lives near her also testified. She testified that
when she heard the alarm she looked out her window and observed a man
and woman and white car outside of Helms’ house.
{¶39} Kendra Bence, the victim of burglary count 3, testified that she
left her house briefly on the afternoon of October 15, 2009, and returned to
find her back door open. Upon entering she discovered that two laptop
computers and a pocketwatch were missing. Phyllis Hash, Bence’s
neighbor, also testified. She testified that during the afternoon in question,
she saw Appellant go around back of Bence’s house. Vicki Mulholand, the
victim of burglary count 4, testified that her sons were home sleeping on the
afternoon in question. She testified that when she left for work that morning
her computer was at the house and when her son’s awoke that afternoon, it Gallia App. No. 10CA10 25
was missing, along with a Harley Davidson watch and ring. John Manley,
the victim of the breaking and entering count, testified that when he arrived
home on the afternoon in question he noticed that the door to his outbuilding
was damaged. Upon entering the building he found that his air compressor
and two boxes of tools were missing.
{¶40} Oak Hill Patrolman Chris Gruber also testified at trial. He
testified that he was contacted by dispatch and was provided with a license
plate number to a white vehicle, the owner of which was Jessica Duncan,
that had been seen in the area of a burglary on October 15, 2009. After
passing the vehicle in Oak Hill that evening, he testified that he attempted to
initiate a traffic stop, which turned into a high speed chase spanning twelve
to fourteen miles. Patrolman Gruber testified that when he was eventually
able to stop Appellant, upon approaching the vehicle he observed a shotgun
in the backseat.
{¶41} Sergeant Eric Werry also testified at trial. He testified that after
the stop, he obtained Jessica Duncan’s permission to search the vehicle.
Further, Detective Lisa Harmon testified at trial. She testified that she was
called in after the stop to help inventory the contents of the vehicle. The
record further reflects that the stolen items mentioned above, belonging to Gallia App. No. 10CA10 26
the various victims, were located in Duncan’s vehicle, which Appellant was
driving.
{¶42} In light of this evidence, we cannot conclude that the jury lost
its way and created a manifest miscarriage of justice by finding Appellant
guilty of four counts of burglary and one count of breaking and entering.
Further, we conclude that there was substantial evidence upon which the
jury could have reasonably concluded that all the essential elements of the
crimes charged had been proven beyond a reasonable doubt. As such, we
overrule Appellant's fifth assignment of error.
ASSIGNMENT OF ERROR VI
{¶43} In his sixth assignment of error, Appellant contends that the
State failed to produce sufficient evidence to sustain convictions of burglary
and breaking and entering. When reviewing the sufficiency of the evidence,
an appellate court examines the evidence admitted at trial to determine
whether that evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio
St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The test is one of
legal adequacy, not rational persuasiveness. The relevant question is, after
viewing the evidence in a light most favorable to the prosecution, whether
any rational trier of fact could have found the essential elements of the crime Gallia App. No. 10CA10 27
proven beyond a reasonable doubt. Id., citing Jackson v. Virginia (1979),
443 U.S. 307, 99 S.Ct. 2781.
{¶44} This test raises a question of law and does not allow us to
weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485
N.E.2d 717. Rather, the test “gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319. The issues of the weight given to the evidence and the credibility of
witnesses are for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79,
79-80, 434 N.E.2d 1356; State v. DeHass at paragraph one of the syllabus.
{¶45} We reject Appellant’s sufficiency argument for many of the
same reasons that we rejected his argument that his conviction was against
the manifest weight of the evidence. Here, as detailed above, the State
presented sufficient direct and circumstantial evidence that if believed,
would convince the average mind of the defendant's guilt beyond a
reasonable doubt as to all four burglary counts as well as the breaking and
entering count. As such, the trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Accordingly,
Appellant’s sixth assignment of error is overruled. Gallia App. No. 10CA10 28
ASSIGNMENT OF ERROR VII
{¶46} In his seventh assignment of error, Appellant contends that the
cumulative error in the trial deprived him of a fair trial. Under the
cumulative-error doctrine, “a conviction will be reversed where the
cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of
trial court error does not individually constitute cause for reversal.” State v.
Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623, 1995-Ohio-168; State v.
DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, at paragraph two of
the syllabus.
{¶47} If “a reviewing court finds no prior instances of error, then the
[cumulative-error] doctrine has no application.” State v. McKnight, Vinton
App. No. 07CA665, 2008-Ohio-2435, at ¶ 108; State v. Hairston, Scioto
App. No. 06CA3089, 2007-Ohio-3707, at ¶ 41. We have already found no
error related to the sufficiency of the evidence, the weight of the evidence,
the effectiveness of Appellant’s trial counsel, the admission of evidence or
the provision of jury instructions. As such, Appellant has not demonstrated
that any errors occurred, let alone multiple errors. Therefore, Appellant’s
seventh assignment of error is without merit. Gallia App. No. 10CA10 29
{¶48} Having overruled all of Appellant’s assignments of error, we
affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Gallia App. No. 10CA10 30
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Gallia County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, J.: Concurs in Judgment and Opinion. Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error II, III, IV, V, VI, & VII and Concurs in Judgment Only as to Assignment of Error I. For the Court,
BY: _________________________ Matthew W. McFarland, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.