[Cite as State v. Vickers, 2013-Ohio-1337.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97365
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
WILLIAM VICKERS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-513543
BEFORE: Blackmon, J., Stewart, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: April 4, 2013 -i-
ATTORNEYS FOR APPELLANT
Timothy Young State Public Defender
By: Francisco E. Luttecke Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
Brett Kyker Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} Appellant William Vickers appeals his convictions and assigns the
following errors for our review:
I. Defendant-Appellant’s burglary conviction violated his state and federal constitutional rights to due process of law, because the evidence presented at trial was insufficient to establish all the requisite elements of that offense.
II. The trial court denied Defendant-Appellant his state and federal constitutional rights to a due process of law when it erred in admitting evidence of Defendant-Appellant’s prior bad acts for purpose of “identity.”
III. The trial court denied Defendant-Appellant his state and federal rights to a fair trial and due process of law when it improperly instructed the jury by misstating the law on unanimity as, “only half, after weighing all the evidence, the jury must be convinced of the guilty [sic] of the defendant beyond a reasonable doubt.”
IV. The trial court’s error in allowing the burglary charge to reach the jury, admitting improper and prejudicial propensity evidence, and misstating the law in its jury instructions cumulatively denied Defendant-Appellant his state and federal rights to a fair trial and due process of law.
{¶2} Having reviewed the record and pertinent law, we affirm Vickers’s
convictions. The apposite facts follow.
{¶3} Between mid-June and the first week of July 2008, four residents of the city
of Cleveland Heights, Ohio reported cellular phones, wallets, and small amounts of cash
missing from their homes. In the early morning of July 6, 2008, Cleveland Heights police officers arrested Vickers when he approached and offered to help, while they were
assisting a young lady that was locked out of her car. At the time of his arrest, Vickers
was in possession of a cellular phone that was later identified as belonging to one of the
residents of the missing items.
{¶4} On July 22, 2008, the Cuyahoga County Grand Jury indicted Vickers on
four counts of burglary, five counts of theft, as well as one count each of tampering with
evidence, assault of a peace officer, resisting arrest, escape, and criminal damaging. On
July 25, 2008, Vickers pleaded not guilty at his arraignment. Numerous pretrials were
followed. On January 12, 2009, a jury trial commenced. Prior to trial, Vickers waived
his right to a jury trial on the escape charge.
Jury Trial
{¶5} The state presented the testimony of 18 witnesses. The testimony
established that during a three week period, a string of nighttime burglaries took place in
an affluent neighborhood in Cleveland Heights. The victims, Mark and Kathryn Adams,
Mary Perotti, Gina Gunning, and Kelly Ansboury all testified that they were in the habit
of leaving their doors unlocked. All five victims reported that either their cell phones
and cash or both were taken from the kitchen area after they had retired to bed prior to or
around midnight.
{¶6} Mark and Kathryn Adams testified that when they awoke on the morning of
July 2, 2008, they noticed a screen on one of their kitchen windows was ajar. On closer
inspection, they discovered slices in the screen near the latches, but after doing a cursory check of the kitchen area, they did not notice anything missing. However, later that day,
Kathryn Adams discovered that her cell phone and $80 were missing from her purse.
{¶7} Mark and Kathryn Adams immediately contacted the Cleveland Heights
police department, who responded to their residence, dusted the house for fingerprints,
but found none. In addition, Kathryn Adams contacted AT&T, her cell phone carrier,
and discovered that several calls had been made from her phone starting at 12:31 a.m. that
morning.
{¶8} Mary Perotti testified that on June 18, 2008, she was unable to locate her
cell phone that she last saw on the kitchen table. Perotti, believing that one of her
toddlers had misplaced the phone, continued to look around the house for almost a week,
but was unable to locate it, and ultimately replaced it with another one. Perotti testified
that in late July or early August 2008, the Cleveland Heights police contacted her about
possible fraudulent use of her phone. Perotti was alerted to two phone calls that were
made from her phone at approximately 2:30 a.m. on June 18, 2008. Perotti did not
recognize the numbers.
{¶9} Gina Gunning testified that she and her husband went to bed around 11:00
p.m. on June 30, 2008, and they awoke the next morning around 6:00 a.m. Gunning
stated that later that morning when she looked in her purse, she discovered that money
and credit cards were missing from her wallet. She contacted her husband, who also
discovered money was missing from his wallet. Gunning’s husband also indicated that he had noticed that the kitchen window was ajar when he was preparing to leave for work
early that morning.
{¶10} Kelly Ansboury testified that she had used her cell phone around 8:00 p.m.
on July 5, 2008, to call her mother while she was walking the family dog. Ansboury
stated that she placed the cell phone on the kitchen counter after returning home and that
she and her husband retired to bed around midnight. Ansboury testified that she could
not locate her cell phone the following morning. When she checked her purse, $38 in
cash was missing. Ansboury stated that around noon, Cleveland Heights police officers
came to advise her that they had arrested a man who had her cell phone in his possession.
{¶11} The testimony at trial also established that three individuals, Kenneth
Thompson, Deanna DeMaris, and Mary Beth Byrne received phone calls from Vickers on
cell phones that were reported missing from the aforementioned victims’ homes. All
calls were placed in the early morning, shortly after midnight. Thompson testified that
Vickers was his cousin and that he received a call from him in the early hours of July 2,
2008, asking for a place to sleep.
{¶12} Byrnes testified that she has known Vickers since the early 1980s and that
at one point he stayed with her for about a month. Byrnes testified that on June 18, 2008,
at approximately 2:30 a.m., she received a call from an unrecognized number that hung
up before she could answer. Byrnes hit redial, but no one answered. Byrnes
periodically dialed the number, and on June 26, 2008, Mary Perotti answered. {¶13} DeMaris, who dated Vickers in the early 1980s, testified that he would
contact her periodically over the years. DeMaris received a phone call from Vickers on
July 2, 2008, from a cell phone that belonged to Kathryn Adams.
{¶14} In the middle of trial, Vickers pleaded guilty to the single count of escape.
At the close of the evidence, the jury acquitted Vickers of one count each of burglary,
theft, tampering with evidence, and criminal damaging, but found him guilty of the
remaining charges. On February 17, 2009, the trial court sentenced Vickers to an
aggregate prison term of ten years.
Sufficiency of Evidence
{¶15} In the first assigned error, Vickers argues the state’s evidence was
insufficient to sustain his conviction.
{¶16} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the state has met its burden of production at trial.
State v. Givan, 8th Dist. No. 94609, 2011-Ohio-100, citing State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. On review for sufficiency, courts are to
assess not whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction. Id.
{¶17} The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. {¶18} In the instant case, although the jury returned guilty verdicts on several
other charges, Vickers primarily attacks the three burglary convictions. Vickers was
convicted of burglary in violation of R.C. 2911.12(A)(2), which states:
No person, by force, stealth, or deception, shall do any of the following:
* * * 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[.]
{¶19} Vickers contends that the burglary convictions cannot be sustained;
specifically because the state presented no physical evidence, such as fingerprints, to
establish that he committed a trespass in any of the properties. Vickers maintains that, at
most, the evidence presented established that he committed theft offenses. In fact, Vickers
maintains he was a “neighborhood fence” and should only have been charged with
receiving stolen property. Vickers suggests all of the evidence was circumstantial
and/or based upon inferences.
{¶20} However, we note that there is no distinction in the particular weight or way
of evaluating the evidence, whether it is direct or circumstantial. State v. Simmons, 8th
Dist. No. 97557, 2012-Ohio-3454, citing Jenks at paragraph one of the syllabus.
Circumstantial evidence and direct evidence inherently possess the same probative value.
In some instances, certain facts can only be established by circumstantial evidence. Id.
{¶21} A review of the record reveals that at the time of Vickers’s arrest, which
was shortly after 1:00 a.m., he was in possession of Ansboury’s phone along with two wads of cash amounting to $41 and $38, respectively. Ansboury had placed a call to her
mother around 8:00 p.m., placed the phone on the kitchen counter, and then retired to bed
around midnight. Ansboury also stated that she and her husband normally leave their
doors unlocked. She wasn’t aware that her phone was missing until the police told her.
{¶22} Given that Vickers was in possession of Ansboury’s cell phone within an
hour after Ansboury retired to bed, a rational trier of fact could conclude that it was more
likely that he obtained the cell phone after entering the home rather than by virtue of
being a “neighborhood fence.”
{¶23} Likewise, the evidence that Vickers placed calls to Thompson, Byrne, and
DeMaris, between midnight and the break of dawn, using cell phones belonging to
Adams and Perotti who had respectively reported them missing shortly after the calls
were made, supports the conclusion that it was more likely than not that Vickers
trespassed into the respective houses.
{¶24} All three phones were used to call individuals known to Vickers and all
three calls were made between midnight and 3:00 a.m. on the day they were discovered
missing. After viewing the evidence in a light most favorable to the prosecution, the
above evidence, if believed, would support the conclusion that Vickers trespassed into the
property and therefore was guilty of burglary. As such, any rational trier of fact would
have found the essential elements of burglary proven beyond a reasonable doubt.
Accordingly, we overrule the first assigned error.
Other Acts Evidence {¶25} In the second assigned error, Vickers argues the trial court erred in
admitting evidence of his involvement prior burglaries. Specifically, Vickers challenges
the trial court’s failure to exclude testimony about a 2003 interview with Detective David
Bartee in which Vickers admitted having committed other burglaries in the same
neighborhood in Cleveland Heights. The state counters that the evidence was properly
admitted to prove identity.
{¶26} We review the admission of evidence under an abuse of discretion
standard. State v. Driggins, 8th Dist. No. 98073, 2012-Ohio-5287, citing State v.
Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). “Abuse of discretion” connotes
more than error of law or judgment; it implies that the court’s attitude was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶27} Pursuant to Evid.R. 404(B),
[E]vidence of other crimes, wrongs, or acts is not admissible to prove a defendant’s character as to criminal propensity. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.
{¶28} Rule 404(B) is codified in R.C. 2945.59, which provides that:
[I]n any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
{¶29} Recently, in State v. Williams, 2012-Ohio-5695, 2012 Ohio LEXIS 3100,
the Ohio Supreme Court revisited and addressed this very issue. The Ohio Supreme
Court concluded that Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes
the admission of evidence of other crimes, wrongs, or acts offered to prove the character
of an accused in order to show that the accused acted in conformity therewith, but does
not preclude admission of that evidence for other purposes, e.g., to show proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Id.
{¶30} At trial, Detective Bartee testified that in an interview in 2003, Vickers
admitted to burglarizing five houses in the same neighborhood in Cleveland Heights. The
burglaries, like the instant case, took place over a span of approximately three weeks.
Vickers gained entrance through unlocked windows or doors and took cell phones and
cash from the kitchen areas. Detective Bartee testified that Vickers indicated in a written
statement that he only committed the burglaries between 12:00 a.m. and 5:00 a.m.
{¶31} In the instant case, the burglaries took place over a similar time span, in the
same neighborhood, and with similar items taken. The instant burglaries also involved
entry to the homes in a similar fashion. In addition, the instant burglaries all occurred at
night. Interestingly, Detective Bartee testified that the vast majority of burglaries in
Cleveland Heights occur during the day and involve forced entry. {¶32} Here, in accord with the Ohio Supreme Court’s recent pronouncement in
Williams supra, Detective Bartee’s testimony was pertinent to establish identity utilizing
the striking similarities between the 2003 string of burglaries in the same neighborhood.
As such, the trial court did not abuse its discretion in admitting Detective Bartee’s
testimony regarding Vickers’s involvement in the 2003 burglaries. Accordingly, we
overrule the second assigned error.
Jury Instructions
{¶33} In the third assigned error, Vickers argues he was prejudiced by the trial
court’s incorrect jury instructions. Specifically, Vickers argues he was prejudiced when
the trial court stated: “the law requires that only half, after weighing all the evidence, the
jury must be convinced of the guilt of a defendant beyond a reasonable doubt.” Tr. 503.
{¶34} We note, the record reflects that Vickers failed to object to the trial court’s
statement. Crim.R. 30(A) provides in pertinent part:
On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.
{¶35} Pursuant to this rule, the failure to object to a jury instruction in a timely
manner generally constitutes a waiver of any claimed error relative to the instructions.
State v. Majid, 8th Dist. No. 96855, 2012-Ohio-1192, ¶ 72, citing State v. Underwood, 3
Ohio St.3d 12, 444 N.E.2d 1332 (1st Dist.1983), syllabus. {¶36} Under Crim.R. 52(B), however, this court has the power to recognize plain
error or defects involving substantial rights even if they are not brought to the attention of
the trial court. State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).
{¶37} 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.
Bell, 8th Dist. No. 97123, 2012-Ohio-2624, citing State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978). An error does not rise to the level of plain error unless, but for the
error, the outcome of the trial would have been different. Long at paragraph two of the
syllabus.
{¶38} In the instant case, despite the complained of statement cited above, the trial
court later stated: “Once again, because this is a criminal case, the law requires that all 12
of you be in agreement before you can consider that you have reached a verdict.” The
trial court then went on to explain to the jury that they would have verdict forms
reflecting each count in the deliberation room, that the forms were self explanatory, and
that the form must be signed by all twelve jurors.
{¶39} When a reviewing court examines jury instructions, a single instruction
may not be judged in artificial isolation, but must be viewed in the context of the overall
charge. State v. Ramey, 4th Dist. No. 05CA2865, 2006-Ohio-3548, citing State v.
Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52. Thus, the reviewing court
must consider the jury instructions “as a whole” and determine whether the charge
probably misled the jury in a matter materially affecting the complaining party’s substantial rights. Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208, 560
N.E.2d 165 (1990); see also State v. Noggle, 140 Ohio App.3d 733, 750,
2000-Ohio-1927, 749 N.E.2d 309 (3d Dist.). Further, courts presume that juries obey the
instructions given to them. State v. Ahmed 103 Ohio St.3d 27, 2004-Ohio-4190, 813
N.E.2d 637.
{¶40} Here, the jury instructions, when viewed as a whole, indicates that the trial
court rehabilitated the earlier misstatement relative to the required unanimity in criminal
cases. As such, we can see no evidence that Vickers was prejudiced by the earlier
statement. Accordingly, we overrule the third assigned error.
Cumulative Errors
{¶41} In the fourth assigned error, Vickers argues that cumulative errors denied
him a fair trial.
{¶42} The “cumulative error” doctrine states that “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 the numerous instances of the trial court error does
not individually constitute cause for reversal.” State v. Rosa, 8th Dist. No. 96587,
2012-Ohio-1042, citing State v. Garner, 74 Ohio St.3d 49, 64, 1995-Ohio-168, 656
N.E.2d 623. However, “[t]here can be no such thing as an error-free, perfect trial, and
* * * the Constitution does not guarantee such a trial.” State v. Hill, 75 Ohio St.3d 195,
212, 1996-Ohio-222, 661 N.E.2d 1068 (1996), quoting United States v. Hasting, 461 U.S.
499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). {¶43} As we have previously discussed, the trial court did not abuse its discretion
in admitting testimony regarding Vickers’s admitted involvement in a string of 2003
burglaries in the same neighborhood in Cleveland Heights. We also found that the trial
court’s initial misstatement in the jury instructions was cured by its later more detailed
instructions regarding the unanimity of jury verdicts in criminal cases. Thus, this
complained of misstatement did not adversely affect the outcome of Vickers’s trial.
{¶44} As such, we find no merit to Vickers’s allegation that these perceived errors
cumulatively affected his right to a fair trial. Accordingly, we overrule the fourth
assigned error.
{¶45} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. The defendant’s conviction having been affirmed, any bail pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MELODY J. STEWART, A.J., and MARY EILEEN KILBANE, J., CONCUR