[Cite as State v. Tolbert, 2019-Ohio-2557.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170711 TRIAL NO. B-1703355 Plaintiff-Appellee, :
vs. : O P I N I O N.
LUTHER TOLBERT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Vacated in Part, and Cause Remanded
Date of Judgment Entry on Appeal: June 26, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela Stagnaro, for Defendant-Appellant. O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Presiding Judge.
{¶1} While defendant-appellant Luther Tolbert was properly convicted of
aggravated burglary, we conclude that the trial court improperly ordered him to stay
away from the victims’ family and that it failed to properly document the merger of
the second count of the indictment with the first. For that reason, we affirm the
judgment of the trial court in part, vacate it in part, and remand the cause for further
proceedings.
An Argument Escalates
{¶2} Tolbert arrived at the home of Beverly and Wesley Ward on June 5,
2017. Tolbert had a child with one of the Wards’ granddaughters, Myshel Ward, and
he had driven to their residence to pick up his child. Because of previous incidents
involving Tolbert and the Wards, Tolbert had been told repeatedly that he was not
welcome in the home. When Tolbert arrived, Myshel’s aunt, Nicole Ward (“Nicole”),
was bringing in groceries. According to Nicole’s testimony, she spoke with Tolbert
briefly and told him that she would go get Myshel. When Nicole told Tolbert that he
had to come back later because Myshel was sleeping, Tolbert became angry and
stormed back to his car complaining that “she gon [sic] make me start.”
{¶3} Nicole continued to bring in groceries, and Tolbert entered the home
while Nicole was in the kitchen. Nicole testified that he was searching the house
asking where Myshel was. Nicole confronted Tolbert and told him he had to leave,
but Tolbert was acting “sporadically” and would not listen. Tolbert eventually made
his way to the back bedroom where Myshel was sleeping and began to hit her,
according to Nicole. Nicole testified that she heard one of the children yelling for
Beverly and Wesley Ward, telling them that Tolbert was hitting Myshel and that he
had a gun. An objection to that testimony was sustained. Nicole testified that she
did not see Tolbert with a gun.
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{¶4} Beverly Ward testified that she awoke when her great-granddaughter
pounded on the wall and yelled that Tolbert was in the home, hitting Myshel, and
that he had a gun. Mrs. Ward testified that she confronted Tolbert and told him to
leave. She then said that he “started to walk out the door, he turned around and
came back in the door and he pulled the gun on me.” According to Mrs. Ward, it was
a small, silver handgun and he pointed it in her face. The confrontation occurred on
the front porch of the home, which the Wards had converted into a computer room
and living area in the 1990s. The room had been decorated with bookcases, seating,
and computer equipment, and the Wards considered it part of their home, even
though the door to the computer room from the outside did not lock. Mr. Ward, who
had been standing behind her, then pulled Mrs. Ward into the living room, and
Tolbert left.
{¶5} Wesley Ward testified that after the couple had been awakened by
their great-grandchildren, he confronted Tolbert and asked him to leave. But
because Tolbert would not listen to him, he left Mrs. Ward to address him and Mr.
Ward went onto the front porch. He testified that Mrs. Ward was yelling at Tolbert
that he needed to have someone else come pick up the child and that he was not
allowed in the home. Mr. Ward testified that Tolbert left through the porch area as
Mrs. Ward continued to yell at him. Tolbert then came back on the porch, yelling
“say it one more time. Say it one more time.” Mr. Ward said that, at that point,
Tolbert produced a small, silver handgun and pointed it in his wife’s face. Mr. Ward
then pulled Mrs. Ward into the living room, and Tolbert left.
{¶6} While Tolbert was still at the residence, one of the residents called
911. The recording of the 911 call was played during the trial.
{¶7} Tolbert’s version of events differed significantly from the testimony of
the Ward family. Tolbert testified that he was at the home to pick up his son. He
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said that when he arrived he spoke with Nicole about picking up the child. He then
followed her to the house. When he reached the door, he picked up one of the
children and discovered that the child had a dirty diaper. He said that he offered to
change the child, and entered the home with Nicole. He then said that he went back
to find Myshel. When he could not get her to wake up, he started to move toward
that door. It was at that time, according to his testimony, that he was confronted by
Mr. and Mrs. Ward. He left the home and approached his vehicle. When he reached
the vehicle, he said that he was threatened by a member of the Ward family. He said
that he then retrieved a firearm from the vehicle, but said that he never brandished it
or pointed it at anyone. He testified that he then got into his vehicle and left.
{¶8} Sergeant Eric Catron from the Springfield Township Police
Department also testified at trial. He said that he arrived at the scene after Tolbert
had left but spoke to him on the phone when Tolbert called Myshel. During the
course of his investigation, Sergeant Catron also accessed the recordings of phone
calls that Tolbert made while he was being held at the Hamilton County Justice
Center. Sergeant Catron testified that only the first few calls were pertinent to his
investigation. The calls were between Tolbert and Myshel. Sergeant Catron had the
calls copied to a disk and transcribed. Both the recordings and transcriptions were
admitted into evidence and reviewed by the trial court during the course of the trial.
During his testimony, Sergeant Catron summarized the content of the calls by stating
that “he admits in various different ways to committing the offense several times. He
also denies it, and then he gives several different reasons why he did it.”
{¶9} Tolbert was indicted on two counts of aggravated burglary. The first
count alleged a violation of R.C. 2911.11(A)(2) and carried one- and three-year gun
specifications. The second count alleged a violation of R.C. 2911.11(A)(1). Tolbert
waived his right to a jury trial and the matter was tried to the court. At the
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conclusion of the trial, the trial court found him guilty of both counts and both
specifications. The trial court sentenced him to three years in prison on count one,
and three years on the second gun specification. During the sentencing hearing, the
trial court told Tolbert that the second count would be merged with the first count,
but that decision was not memorialized in the judgment entry. The trial court also
ordered Tolbert to have no contact with the Ward family. In four assignments of
error, Tolbert now appeals.
The Admission of Evidence
{¶10} In his first assignment of error, Tolbert claims that the trial court
erred when it admitted a number of statements into evidence. He first claims that
the trial court improperly admitted the evidence of his jail calls as the calls had not
been authenticated, contained hearsay, and violated his right of confrontation as
announced in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004). He also argues that the statements made by the Wards’ great-granddaughter
that he was hitting Myshel and that he had a gun were improperly admitted.
{¶11} Tolbert concedes that he did not object to the evidence that he now
claims was improperly admitted and considered. The failure to object to the
admission of evidence at trial waives all but plain error on appeal. See Crim.R.
30(A); State v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 15 (1st Dist.). “Notice of
plain error * * * is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. To prevail
on a claim that the trial court committed plain error, an appellant must demonstrate
that an error constitutes an obvious defect in the trial proceedings and demonstrate
that the error affected the outcome of the trial. State v. Gordon, 152 Ohio St.3d 528,
2018-Ohio-259, 98 N.E.3d 251, ¶ 23.
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{¶12} Beginning first with the admission of the jail calls, the record reflects
that defense counsel stipulated to the admission of the calls in their entirety. During
the trial, the following exchange took place:
[Defense Counsel]: And did we want to address on the record
while we’re up here, I know that there’s some audio recordings of some
calls from the jail.
I have spoken to my client; I believe they’ve been transcribed.
I believe the transcription pretty accurately reflects what’s in the audio
calls, and I don’t have a problem [stipulating] to those calls.
It’s my understanding that Your Honor may have listened to
them and looked at a transcript, so we don’t have to play them in open
court.
[The Court]: Right. I did both.
[Defense Counsel]: And I’ve spoken to my client about the fact
that I don’t have a problem allowing that to happen as opposed to
having them done in open court. They’re a little hard to hear.
Thus, counsel was aware not only aware of the nature of the evidence, but also that
the trial court had already read the transcript and listened to the calls. If counsel had
any objection to all or part of the recordings, this was the time to raise it. But the
record makes clear, at that point, that the parties were in agreement that the
evidence would be admitted. And prior to the admission of the calls, counsel for
Tolbert had discussed the new evidence with the trial court, saying
There is some new discovery that I did get this morning. It’s
paraphrased by the officer, but I’d like to - - it’s apparently jailhouse
calls.
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I think some of it is helpful. It delves into my client’s concept
of what happened that day, and the prosecutor probably feel’s it’s
helpful, but I’d like to listen to the actual call.
Counsel did not object when the recordings and transcripts were offered for
admission by the state.
{¶13} Defense counsel made the decision not to object to the evidence,
believing that portions of it were helpful to Tolbert’s case. Nothing in the record
contradicts this conclusion. Therefore, it was not plain error to admit the transcripts
and recordings into evidence.
{¶14} Tolbert’s next argument presents a different question. Tolbert claims
that the trial court erred when it allowed the testimony of Mr. and Mrs. Ward that
one of their great-grandchildren had shouted that Tolbert was hitting Myshel and
that he had a gun. But Tolbert has failed to establish that the trial court relied upon
the statement when rendering its decision. A judge in a bench trial is presumed not
to have considered improper evidence in reaching a verdict. State v. Arnold, 147
Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. And this presumption stands
“unless it affirmatively appears to the contrary.” Id., quoting State v. Post, 32 Ohio
St.3d 380, 384, 513 N.E.2d 754 (1987). As the Sixth Appellate District has noted,
absent an affirmative showing in the record rebutting the presumption that the trial
court considered only relevant, material, and competent evidence in arriving at its
judgment, a ruling on admissibility of evidence in a bench trial presents no issue
reviewable as plain error. State v. Williams, 2013-Ohio-726, 987 N.E.2d 322, ¶ 31
(6th Dist.), citing In re B.P.K., 10th Dist. Franklin No. 12AP-343, 2012-Ohio-6166, ¶
16.
{¶15} There is nothing that demonstrates that the trial court considered any
improper evidence. In fact, the record demonstrates to the contrary. Testimony
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regarding what the great-grandchild may have shouted through the Wards’ closed
bedroom door was first introduced in the testimony of Nicole Ward. When she said
that the great-grandchildren had yelled that Tolbert was hitting Myshel and that he
had a gun, defense counsel objected, and the trial court sustained the objection. And
at no point during either the trial or sentencing did the trial court reference the
statement, Tolbert hitting Myshel, or Tolbert threatening Myshel with the gun.
{¶16} Tolbert claims that this was the only evidence that he had a weapon in
the house; but that argument is premised on the assertion that that porch area was
not part of the house for the purposes of the aggravated-burglary statute. R.C.
2911.11(A)(2) states that
No person, by force, stealth, or deception, shall 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, if * * * [t]he offender has a deadly
weapon or dangerous ordnance on or about the offender's person or
under the offender's control.
An “occupied structure” is defined as
any house, building, outbuilding, watercraft, aircraft, railroad car,
truck, trailer, tent, or other structure, vehicle, or shelter, or any
portion thereof, * * * [that] * * * is maintained as a permanent or
temporary dwelling, even though it is temporarily unoccupied and
whether or not any person is actually present.
(Emphasis added.) R.C. 2909.01(C)(1).
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{¶17} Tolbert argues that the porch “was a sitting area outside the house
that just happened to be enclosed.” But, as the state points out, the pictures of the
area are such that the factfinder could conclude that the area was part of the
residence. The area had been remodeled in the 1990s, it was attached to the main
portion of the home, it had been decorated and furnished, and the residents spent
time in the area during the warmer months, which would include the month of June
when this offense occurred. There was ample evidence that the front porch area was
part of the residence; i.e., a portion of a house that is maintained as a permanent
dwelling.
{¶18} Since there was evidence that Tolbert was inside the “residence” with
the handgun other than the testimony about what the great-grandchildren had said,
Tolbert has pointed to nothing in the record to indicate that the trial court
considered the statement when making its determination of his guilt. We overrule
his first assignment of error.
Ineffective Assistance of Counsel
{¶19} In his second assignment of error, Tolbert claims that his trial counsel
was ineffective and that, as a result, he was denied a fair trial. To prevail on an
ineffective-assistance-of-counsel claim, Tolbert must show that trial counsel's
performance fell below an objective standard of reasonableness, and that he was
prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). In order to demonstrate prejudice, Tolbert must
establish that, but for counsel's errors, there is a reasonable probability that the
result of trial would have been different. State v. Burke, 97 Ohio St.3d 55, 2002-
Ohio-5310, 776 N.E.2d 79, ¶ 6. The failure to make an adequate showing on either
prong is fatal to an ineffective-assistance-of-counsel claim. See Strickland at 697.
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{¶20} First, Tolbert claims that counsel was ineffective for failing to object
to the testimony presented in the first assignment of error. But, as set forth above,
trial counsel appears to have made the decision to allow the recorded phone calls
into evidence as part of his trial strategy. Refraining from objecting to otherwise
objectionable evidence may, depending upon the circumstances, be sound trial
strategy. See State v. Proffitt, 12th Dist. Butler No. CA2016-07-134, 2017-Ohio-1236,
¶ 32. As for the failure to object to the claimed hearsay statements of the great-
grandchild, Tolbert cannot show that the trial court considered the statements and,
as a result, cannot demonstrate that he has suffered any prejudice as a result of the
testimony.
{¶21} Tolbert next claims that trial counsel was ineffective for allowing
Sergeant Catron to summarize the contents of the phone calls. He argues that the
summary “was not accurate”; but does not explain how it was inaccurate. Even if
this was correct—a fact that Tolbert has failed to establish—the record clearly
demonstrates that the trial court listened to the recordings and reviewed the
transcript on its own. Tolbert was not prejudiced by any inaccuracy in the summary
done by Sergeant Catron.
{¶22} Tolbert also argues that counsel was ineffective for failing to object to
the imposition of a no-contact order as a portion of his sentence. Since we will
address that issue in Tolbert’s final assignment of error, we need not address it here.
See App.R. 12(A)(1)(c). We overrule Tolbert’s second assignment of error.
Sufficiency/Weight of Evidence
{¶23} In his third assignment of error, Tolbert claims that his conviction
was based upon insufficient evidence and was contrary to the manifest weight of the
evidence. In a challenge to the sufficiency of the evidence, the question is whether,
after viewing the evidence in the light most favorable to the state, any rational trier of
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fact could have found all the essential elements of the crime proved beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. When considering a challenge to the weight of the
evidence, the court 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 a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485
N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.
{¶24} In order for the trial court to find Tolbert guilty of aggravated
burglary, in violation of R.C. 2911.11(A)(2), the state had to prove that Tolbert by
force, stealth, or deception, trespassed in an occupied structure or in a separately
secured or separately occupied portion of an occupied structure, when another
person was present, with purpose to commit in the structure any criminal offense, if
he had a deadly weapon on or about his person or under his control. Tolbert’s
argument hinges upon finding one version of the events more credible than another
version. Therefore, the main thrust of his argument here is the manifest weight—
rather than the sufficiency—of the evidence. We will address each of his arguments
in turn.
{¶25} Tolbert first claims that he did not enter the home by means of “force,
stealth, or deception.” He argues that he simply followed Nicole Ward into the
home. It is unclear how precisely Tolbert entered the home. He followed Nicole
Ward, but it is unclear if he opened a closed door or if he walked through the open
door. Either way, the statutory element had been met in this case.
{¶26} It has long been established in Ohio that the force element of an
aggravated-burglary charge can be accomplished through the opening of a closed but
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unlocked door. See State v. Lane, 50 Ohio App.2d 41, 361 N.E.2d 535 (10th
Dist.1976). Therefore, had Tolbert opened the closed door, this action would have
been sufficient to meet the definition of force.
{¶27} Alternately, if he walked in the open door, the record supports the
conclusion that he entered by stealth. Nicole Ward testified that Tolbert entered the
home while she was in the kitchen putting away groceries. She said:
A. Then I went back in and continued to put the groceries up,
because I had gone grocery shopping just before I had came back
home.
And like seconds later, all of a sudden he’s coming in the
home, he’s talking about where is Myshel at? Where is Myshel?
Q. Now where in the home is he at that point?
A. He’s in our kitchen at this time, and I’m putting groceries
away, like I never once told you to come in or anything.
From this evidence, the trial court could properly conclude that the element was met.
{¶28} Tolbert next argues that the state failed to prove that he trespassed
with the intent to commit a criminal offense, claiming that he entered the property
only with the intent to pick up his son. But the intent to commit a criminal offense
need not be formed prior to entry of the premises, but may be formed any time
during the trespass. See State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889
N.E.2d 995, ¶ 33. Once inside the home, he brandished a weapon and threatened
Mrs. Ward. While he may not have had this intention when he entered the premises,
the record supports the conclusion that once Myshel told him to come back later, his
intent changed.
{¶29} Tolbert next argues that he did not trespass in an occupied structure,
claiming that he was only on the front porch when he had the handgun. He argues
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that “[i]t was a sitting area outside the house that just happened to be enclosed.”
But, as we have previously discussed, the record supports the conclusion that the
porch was part of the residence for the purposes of R.C. 2911.11(A)(2).
{¶30} Finally, Tolbert argues that there was no evidence that that he had
inflicted or attempted to inflict physical harm on Mrs. Ward. But, as we determine in
the fourth assignment of error, the trial court merged the physical-harm aggravated-
burglary count during the sentencing hearing. Therefore, Tolbert was not harmed by
any error in this regard. See State v. Coleman, 2016-Ohio-7335, 72 N.E.3d 1086, ¶
66 (6th Dist.) (error involving evidence relating to merged counts is harmless when
the evidence goes only to the merged counts).
{¶31} Tolbert also argues that the trial court improperly convicted him of
the three-year gun specification “because he did not display, brandish, indicate
possession of, or use the gun to facilitate the offense.” This is only true if you believe
his version of events and discredit the version of events testified to by Mr. and Mrs.
Ward. We overrule Tolbert’s third assignment of error.
Sentencing
{¶32} In his final assignment of error, Tolbert first claims that the trial court
improperly issued a no-contact order against him. A no-contact order is a
community-control sanction. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-
2089, 35 N.E.3d 173, ¶ 17. “[W]hen a prison term and community control are
possible sentences for a particular felony offense, absent an express exception, the
court must impose either a prison term or a community-control sanction or
sanctions.” Id. at ¶ 31. Therefore, the trial court did not have the authority to impose
both a prison sentence and a no-contact order. See id. at ¶ 32. The state concedes
error in this regard.
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{¶33} Tolbert also argues that the trial court erred when it failed to merge
count two with count one. A review of the record indicates that the trial court did
order count two to be merged with count one, but the entry incorrectly reflects that
the trial court had ordered the sentences to be run concurrently. The state also
concedes error in this regard. We therefore sustain Tolbert’s fourth assignment of
error.
Conclusion
{¶34} Having considered each of Tolbert’s assignments of error, we affirm
the judgment of the trial court in part, vacate the no-contact order, and remand the
matter to the trial court with instructions to correct its entry to reflect that count two
of the indictment was merged with count one. When correcting the entry, the trial
court should also remove reference to the no-contact order that we have vacated
herein.
Judgment affirmed in part, vacated in part, and cause remanded.
ZAYAS and BERGERON, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.