State v. Pellegrini , 2013 Ohio 141 ( 2013 )

[Cite as State v. Pellegrini, 2013-Ohio-141.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-12-30
v.
GIOVANNI L. PELLEGRINI, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2012 0008
Judgment Affirmed
Date of Decision: January 22, 2013
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
Case No. 1-12-30
PRESTON, P.J.
{¶1} Defendant-appellant, Giovanni L. Pellegrini, appeals the Allen County
Court of Common Pleas’ judgment entry of conviction and sentence. We affirm.
{¶2} This case stems from the theft of a moneybag from a Rays Signature
Foods’ employee, Mary Ann Norris, as she was walking the money to the bank for
deposit. Pellegrini, an employee at Rays, provided inside information enabling his
friend and co-defendant, Mike Pasterchik, to snatch the moneybag and drive off
with co-defendant, Adam Reid. (May 8-9 2012 Tr. at 51-58, 87-88, 96-97, 101,
116-117). When Pasterchik ripped the moneybag from Norris’ hands, it caught a
ring on her pinky finger, causing her to violently spin around and her finger to
swell for several days after the incident. (Id. at 52, 58). Pellegrini was not present
or working the day of the incident. (Id. at 43).
{¶3} On February 16, 2012, the Allen County Grand Jury indicted
Pellegrini on Count One of robbery in violation of R.C. 2911.02(A), a second
degree felony, and Count Two of grand theft in violation of R.C. 2913.02(A)(1),
(B)(2), a fourth degree felony. (Doc. No. 7). Although the indictment charged
Pellegrini of the principal offenses as permitted under R.C. 2923.03(F), a
subsequently filed bill of particulars clarified that Pellegrini was being charged
under the complicity statute for his involvement in the criminal activity. (Doc.
No. 51).
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{¶4} On February 22, 2012, Pellegrini filed a written plea of not guilty to
both counts. (Doc. No. 11).
{¶5} On May 8-9, 2012, the matter proceeded to jury trial, and the jury
found Pellegrini guilty on both counts. (Doc. Nos. 60-62).
{¶6} On June 14, 2012, the trial court held a sentencing hearing. (Doc. No.
67). After the trial court concluded that Count Two was an allied offense with
Count One under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the State
elected to proceed on Count One of robbery. (Id.). The trial court then sentenced
Pellegrini to three years imprisonment. (Id.).
{¶7} On July 5, 2012, Pellegrini filed a notice of appeal. (Doc. No. 71).
Pellegrini now raises four assignments of error for our review. We elect to
combine his first, second, and fourth assignments of error for analysis.
Assignment of Error No. I
The conviction for Robbery pursuant to R.C. §2911.02(A)(2) was
not supported by sufficient evidence as to the element of
“physical harm” and the mens rea element attached thereto.
Assignment of Error No. II
The conviction for Robbery pursuant to R.C. §2911.02(A)(2) was
against the manifest weight of evidence as to the element of
“physical harm” and as to the mens rea element attached
thereto.
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Assignment of Error No. IV
The conviction for Grand Theft was against the manifest weight
of the evidence and not supported by sufficient evidence.
{¶8} In his first and second assignments of error, Pellegrini argues that his
robbery conviction was not supported by sufficient evidence and against the
manifest weight of the evidence, because the State failed to prove that he
recklessly inflicted physical harm upon another during the commission of the
offense. Particularly, Pellegrini argues that he was not “reckless” with respect to
the physical harm caused to Norris since the injury “was completely unanticipated,
as the intent was a simple grab-and-run with an expectation of grabbing the money
bag without any injury intended or expected.” (Appellant’s Brief at 7). Moreover,
Pellegrini argues that R.C. 2911.02(A)(2) requires that he “inflict” physical harm,
not merely “cause” physical harm. Pellegrini argues that the legislature’s use of
the term “inflict” rather than “cause” requires direct action upon the victim, and
the direct action here was upon the moneybag, which “accidentally and
incidentally caus[ed] the injury by catching on the ring on the finger.” (Id. at 10).
{¶9} In his fourth assignment of error, Pellegrini argues that his grand theft
conviction was against the manifest weight of the evidence and not supported by
sufficient evidence since the State failed to prove that he acted with “purpose to
deprive the owner of property or services” as required under R.C. 2913.02. In
particular, Pellegrini argues that he declined to participate in the theft and did not
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expect any “financial reimbursement” for his assistance. Pellegrini argues that he
merely answered his friend’s questions and provided what was useful information.
Pellegrini argues that his actions may have been “dumb” but not criminal.
{¶10} When reviewing the sufficiency of the evidence, “[t]he 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(1981), paragraph two of the syllabus.
{¶11} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must 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 [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 ordered.’” State v. Thompkins, 78
Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983). A reviewing court must, however, allow the trier of fact
appropriate discretion on matters relating to the weight of the evidence and the
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶12} The criminal offense of robbery is codified in R.C. 2911.02, which
provides, in relevant part: “[n]o person, in attempting or committing a theft
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offense or in fleeing immediately after the attempt or offense, shall * * * [i]nflict,
attempt to inflict, or threaten to inflict physical harm on another.” R.C.
2911.02(A)(2). “‘Physical harm to persons’ means any injury, illness, or other
physiological impairment, regardless of its gravity or duration.” R.C.
2901.01(A)(3).
{¶13} The requisite mental culpability for the criminal offense of robbery
charged under R.C. 2911.02(A)(2) is recklessness. State v. Colon, 118 Ohio St.3d
26, 2008-Ohio-1624, ¶ 14; State v. Hurst, 181 Ohio App.3d 454, 2009-Ohio-983, ¶
20 (5th Dist.). R.C. 2901.22(C) defines “recklessly” as follows:
A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his
conduct is likely to cause a certain result or is likely to be of a
certain nature. A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, he perversely
disregards a known risk that such circumstances are likely to exist.
{¶14} The criminal offense of theft is codified in R.C. 2913.02, which
provides, in relevant part: “[n]o person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the
property or services * * * [w]ithout the consent of the owner or person authorized
to give consent.” R.C. 2913.02(A)(1). If the value of the property stolen exceeds
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$7,500.00 but is less than $150,000.00, a violation of R.C. 2913.02 is grand theft,
a fourth degree felony. R.C. 2913.02(B)(2).
{¶15} The complicity statute provides, in pertinent part: “[n]o person,
acting with the kind of culpability required for the commission of an offense, shall
* * * [a]id or abet another in committing the offense.” R.C. 2923.03(A)(2)
{¶16} Trina Yvette Cannon, a customer service representative and assistant
manager at Rays Signature Foods in Lima, Ohio, testified that, in December 2011,
she was responsible for scheduling employees. (May 8-9, 2012 Tr. at 26-27).
Cannon testified that, as of December 23, 2011, Pellegrini, who she knew as
“Johnny,” had been employed as a bagger at Rays for three and one-half years.
(Id. at 27-28). Cannon identified State’s exhibit one as Pellegrini’s time card
statement for the week of December 19-25, 2011. (Id. at 30). Cannon testified
that Pellegrini was scheduled to work every day that week, except Tuesday, since
it was a holiday week, and Rays scheduled all of its employees to work all week
on holiday weeks. (Id. at 33). Cannon testified, however, that Pellegrini did not
work his scheduled shifts on Thursday, December 22, 2011, or Friday, December
23, 2011. (Id. at 33-34). Cannon testified that the week prior to Christmas is
usually very busy so Rays does not normally like to honor requests for time off
during that week. (Id.). Pellegrini insisted that he have Thursday and Friday off
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to work a construction job in Columbus with his uncle, testified Cannon. (Id. at
35-36).
{¶17} Cannon testified that Rays generally deposits $10,000.00 in cash per
day, along with any checks it receives. (Id. at 36). Cannon testified that, prior to
its bank deposit, Rays enters the deposit amounts into an in-house computer
system. (Id.). Cannon identified State’s exhibit two as the deposit summary for
the week of December 19-25, 2011. (Id. at 37). Cannon testified that, for
December 23, 2011, there were three entries on the deposit summary, including:
$7,762.62 in checks; $10,000.00; and, $5,000.00. (Id. at 38). She further testified
that the initials “M.A.N.” appearing next to the December 23, 2011 deposit entries
stood for Mary Ann Norris, the Rays’ employee who prepared the deposit that
day. (Id. at 38-39). Cannon testified that Norris did not make the scheduled
deposit that day; but instead, the money was “snatched” as Norris and another
employee were walking it to the bank. (Id. at 40). Cannon testified that neither
Mike Pasterchik, nor Adam Reid, nor Pellegrini had permission to take the money.
(Id.). Cannon testified that neither Pasterchik nor Reid ever worked at Rays. (Id.).
On cross-examination, Cannon testified that the deposits were taken to the bank
between, either 11:00 a.m. to 1:00 p.m. or between 12:00 p.m. and 2:00 p.m.,
though the exact time varies from day to day. (Id. at 43-44). Cannon testified that
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other Rays’ employees working that day could have seen the money being taken to
the bank, and that Pellegrini was not working on December 23, 2011. (Id. at 43).
{¶18} Mary Ann Norris testified that she has worked for Rays since 1990,
and the Shawnee Rays for the past three and a half years. (Id. at 45). Norris
testified that she is currently the office manager. (Id. at 46). Norris testified that
she is familiar with Pellegrini and identified him in court. (Id.). She testified that,
as part of her job responsibilities, she prepares and delivers bank deposits to the
Huntington Bank, which is located right around the corner from Rays. (Id. at 47);
(State’s Ex. 3). Norris testified that, beginning on September 8, 2011 until the
robbery on December 23, 2011, she was taking the Rays’ deposits to the bank
every day. (May 8-9, 2012 Tr. at 49). Norris testified that, for security purposes,
she usually asked one of the carry-out employees to accompany her, and that
Pellegrini accompanied her to the bank 20 to 30 times. (Id. at 49-50). Norris
testified that, on the day of the incident, she and the scanning coordinator walked
out the front door of the store and were half-way into the drive of the bank when a
man came up behind her, grabbed the money bag, and took off. (Id. at 51). Norris
testified that she had the money bag wrapped around her little finger, and when the
man snatched the money bag, it caught a ring on her pinky finger causing the ring
to dig into her finger and her finger to swell. (Id. at 52). Norris testified that her
finger was red and swollen for three to four days after the incident, though she did
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not seek medical attention. (Id.); (Id. at 58). Norris testified that the man pulled
the money bag so hard it jerked her and spun her around. (Id. at 57). Norris was
upset, called the man a “Son of a bitch,” and watched him get into a car that was
driving out of the parking lot and turning North onto Cable Road. (Id. at 57-58).
{¶19} Norris identified State’s exhibit four as the Rays’ moneybag, which
Huntington Bank provided and was marked “Rays 106.” (Id. at 52-53). She
identified State’s exhibit five as the reusable, cloth Rays’ grocery bag she used to
conceal the bank moneybag when she made deposits. (Id. at 53-55). Norris
testified that she had the strap of the grocery bag wrapped around her pinky finger
the day of the robbery. (Id. at 54). Norris identified State’s exhibit six as a copy
of one of the bank deposit slips that was rubber-banded to the money in the money
bag the day of the robbery. (Id. at 54-55). Norris testified that there were two
other deposit slips in the moneybag that day as well, one for five thousand in cash
and another for a little over seven thousand in checks. (Id. at 56). Norris
identified State’s exhibit seven as the bill straps for the money, which had her
initials, M.A.N., on them, and were placed around the cash inside the moneybag.
(Id. at 56-57). Norris testified that neither Pasterchik, nor Reid, nor Pellegrini had
permission to take the money. (Id. at 58). On cross-examination, Norris testified
that Pellegrini worked at Rays for around three and a half years, and she did not
know of Pellegrini stealing anything from Rays during that time. (Id. at 59-60).
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{¶20} Kristie Mae Bolyard testified that she has been employed at Kay’s
Jewelers since May 1999, and she has been the manager at the Lima Mall Kay’s
for the past five years. (Id. at 62-63). Bolyard testified that she was working at
the store on December 23, 2011, and she identified State’s exhibit eight as a sales
receipt from a transaction she conducted at 7:04 p.m. that day with a customer
named Michael Pasterchik. (Id. at 64-65). Bolyard testified that Pasterchik
purchased a diamond engagement fashion ring and an extended service plan for a
total of $61.69. (Id. at 66). Bolyard identified State’s exhibit nine as a copy of a
sales transaction she conducted at 8:21 p.m. that same day with a different
customer, Pellegrini, who purchased a diamond fashion ring for $59.99 and a
lifetime warranty for $19.99 and paid in cash. (Id. at 67-69). Bolyard testified
that she remembered this transaction since she pushed the customer into
purchasing the warranty since she made more money on the warranty. (Id. at 68-
69). Bolyard testified that she did not recognize Pellegrini but did recall the
transaction since Pasterchik brought Pellegrini back to purchase the ring, and
Pasterchik told Pellegrini that he needed the warranty. (Id. at 69-70). On cross-
examination, Bolyard testified that, when Pellegrini stated he did not have the
money for the warranty, Pasterchik stated, “You have to get it. I got it on mine.
You need to get it. Here[],” and Pasterchik paid for the warranty. (Id. at 70, 72).
Bolyard could not recall who handed her the money for the warranty, though she
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testified that all of the money, $85.18, was given to her in cash at one time. (Id. at
72).
{¶21} Lima Police Detective Steven Stechschulte testified that, on
December 23, 2011 around 1:00 p.m., he was called to the Rays Supermarket to
investigate a robbery. (Id. at 73-74). Stechschulte testified that Detective Marik
was the initial responder, so he conducted the initial interviews, but Detective
Marik has since retired. (Id. at 74). Stechschulte testified that Marik informed
him that two employees were walking the deposit to the bank when someone
drove up next to them and one person got out of the car and grabbed the money
bag out of the employee’s hand and jumped back into the car and drove away
eastbound. (Id. at 74-75). Detective Marik also informed him that a witness saw
it happen and obtained a license plate number. (Id. at 75). Stechschulte testified
that the vehicle was registered to Jeremiah Meritt at 903 Rice. (Id. at 77). He
testified that he arrived at the scene and no one was home, so he talked with the
neighbor to get information about the landlord. (Id.). According to Stechschulte,
the neighbor told him that morning she saw a green Pontiac, later identified as a
1992 Pontiac Bonneville which was normally parked at the residence, leave with
three white males inside. (Id. at 78-79). The landlord confirmed that Meritt lived
at the residence along with Jim Cotter, and that they both worked at Kerns
Fireplace on Elida Road. (Id. at 78). Stechschulte testified that he talked with
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Cotter over the phone and inquired about the green car registered to his roommate,
and Cotter became very evasive on the phone. (Id. at 79). Stechschulte testified
that, after this conversation, he began to think of Meritt as his suspect, so he
decided to go to Kerns Fireplace immediately before Cotter could warn Meritt that
he was looking for him. (Id.). Stechschulte testified that, after talking with Meritt
and Cotter, he determined that Cotter’s step-son, Adam Reid, was the one in
charge of the car and most likely responsible for the robbery. (Id. at 80).
Stechsculte testified that he learned that Cotter’s son, Cole, worked at ABC
Warehouse just down the street, so he went there to talk with Cole. (Id.).
Stechschulte talked with the manager at ABC Warehouse and verified that Cole
had been at work all day. (Id. at 80-81). Stechschulte asked Cole if he had a
brother, and Cole indicated that Adam Reid was his half-brother and he had been
in prison for a robbery before. (Id. at 81). Cole also indicated that Reid normally
drives the car and stated that he could see Reid robbing the supermarket. (Id.).
Cole told Stechschulte that Reid normally hangs out with Pasterchik, who had
been staying with Cole. (Id.). Stechschulte testified that he subsequently located
Pasterchik at Cole’s house. (Id. at 82).
{¶22} Stechschulte testified that, after he left Kerns Fireplace, he called
Adam Reid on the phone, and Reid claimed he was doing construction on a house
in Dayton, which Stechschulte did not believe since he could hear a T.V. in the
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background of the phone conversation. (Id.). Stechsculte testified that he
executed a search warrant at Reid’s residence, 463 West McKibben. (Id. at 83).
Stechschulte identified: State’s exhibit ten as a photograph of the garbage bag
found on the front living room floor of 463 McKibben; State’s exhibit eleven as a
photograph of the Huntington Bank money bag with “Rays” written on it which
they found inside the garbage bag; and State’s exhibit twelve as a photograph of
the personal checks payable to Rays found inside the bank bag. (Id. at 84).
Stechschulte identified: State’s exhibit four as the Huntington money bag; State’s
exhibit five as the Rays grocery bag which they subsequently located along the
route the suspects traveled; State’s exhibit seven as money bands, some of which
were located inside the money bag recovered from the bank bag and some of
which were located inside Pasterchik’s safe; State’s exhibits thirteen and fourteen
as photographs of money located in Pasterchik’s safe; and, State’s exhibit eight as
a Kay’s Jewelry receipt located inside Pasterchik’s safe. (Id. at 84-87).
{¶23} Stechsculte testified that he interviewed Pasterchik and Reid, who
both eventually admitted to their involvement in the robbery. (Id. at 87-88).
Stechschulte learned during his interviews that Pellegrini was also involved in the
robbery. (Id. at 88). Stechsculte identified State’s exhibit fifteen as a copy of
portions of the interview with Pellegrini, which interview was subsequently played
for the jury. (Id. at 89-92). Stechsculte testified that there was no video available
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from the robbery or from the Kay’s Jewelry store. (Id. at 92). He also testified
that he was unable to obtain any text messages from the cell phone company since
text messages are only kept for five days, and he was unable to obtain the text
messages from the suspects since they were not on their current cell phones. (Id.).
{¶24} On cross-examination, Stechsculte testified that, in June or July of
2011, Pellegrini had a conversation with Pasterchik about the lack of security at
Rays. (Id. at 96). The text message that Pellegrini sent to Pasterchik showing the
Rays’ employees taking a deposit to the bank was sent around late November or
early December 2011. (Id. at 97). Stechsculte testified that they did not locate
Pellegrini’s fingerprints on the vehicle or any evidence that would implicate
Pellegrini at Reid’s residence or in Pasterchik’s safe. (Id. at 98). Stechschulte
testified that he did not find any physical evidence implicating Pellegrini. (Id. at
100). Pellegrini did not have any relevant, prior convictions according to
Stechschulte. (Id. at 100-101). Stechschulte testified that Reid indicated during
his interview that Pasterchik knew someone on the inside, though Reid had never
met Pellegrini before. (Id. at 101). Stechschulte testified that the only money
Pellegrini received from the robbery was the $19.99 for the ring warranty, and that
Pellegrini stated during his interview that Pasterchik owed him $40.00. (Id. at
102).
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{¶25} Thereafter, the State rested, and the defense made a Crim.R. 29(A)
motion for acquittal, which was denied. (Id. at 104, 107-109).
{¶26} The defense called Adam Reid to the stand, who testified that he pled
guilty to the robbery, which occurred at the Rays Supermarket on December 23,
2011, and that he has never personally met Pellegrini. (Id. at 111-112). On cross-
examination, the State asked Reid what he meant by never meeting Pellegrini
personally, and Reid testified that his brother bought some pills from Pellegrini
and he was in the car with his brother at the time. (Id. at 113). Reid further
testified that his brother purchased the pills from Pellegrini in the Rays parking lot.
(Id.). Reid testified that he has done this sort of thing in the past and has a
criminal record. (Id. at 114). According to Reid, Pasterchik told him about the
Rays Supermarket ‘job,’ though Reid was reluctant to participate at first. (Id.).
Reid testified that he saw a picture of two Rays employees walking across the
Rays parking lot on Pasterchik’s cell phone about three days prior to committing
the robbery and once before, about four weeks prior to the robbery. (Id. at 116).
Reid testified that he knew who sent the pictures and had reason to believe it was
Pellegrini, and the information that Pasterchik provided him was important to
completing the robbery. (Id. at 117). On re-direct, Reid testified that he was not
sure how old the picture on Pasterchik’s phone was or whether or not Pasterchik
had saved the photo from before. (Id. at 118). Reid testified that Pasterchik
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showed him the same picture twice on the phone, and he never talked with
Pellegrini. (Id.).
{¶27} The defense also called Detective Stechsculte, who testified that he
had never retrieved the text message with the picture that was supposedly sent to
Pasterchik. (Id. at 124). Stechsculte testified that Pellegrini indicated during the
interview that the cell phone in his possession was not the same one he had when
the text message was supposedly sent. (Id.); (Id. at 126). Stechschulte further
testified that Pellegrini indicated that he got rid of the cell phone from which he
sent the picture. (Id. at 126). Stechschulte also testified that it was his impression
from the interviews with Reid and Pasterchik that they were trying to minimize
Pellegrini’s role in the robbery to protect him. (Id. at 128). He also testified that
he did not believe Reid and Pasterchik were forthcoming about the amount of
money Pellegrini received from the robbery. (Id. at 128, 131).
{¶28} Thereafter, the defense rested, and the jury found Pellegrini guilty on
both counts. (Id. at 133, 190-191).
{¶29} Pellegrini argues that the evidence failed to show that he “inflict[ed]”
physical harm upon the victim as that term is used in the robbery statute.
Pellegrini cites to State v. Bates, 10th Dist. No. 97APA02-171 (Dec. 2, 1997) in
support of his argument that he did not “inflict” physical harm. The victim in
Bates severely lacerated his forearm when he punched the defendant, a would-be
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robber, as the defendant was entering his home through a broken window. Id. at
*1. On appeal, the defendant argued that he did not “inflict” physical harm upon
the victim; but rather, the victim suffered physical harm as a result of punching
him through the window. Id. at *4. Since the term “inflict” was not defined in the
statute, the Appellate Court analyzed the common definitions of the term “inflict”
and determined that “[e]ach of these definitions suggests that inflict connotes more
than simple ‘but for’ causation, but implies some direct action by one person upon
another.” Id. The Appellate Court also noted that the legislature had used the
term “caused” to modify the term “serious physical harm” in the felonious assault
statute, R.C. 2903.11(A); and therefore, the legislature must not have intended the
terms “inflict” and “caused” to be synonymous, as the State urged on appeal. Id.
After reviewing the evidence, the Court in Bates concluded that “the serious
physical harm suffered by [the victim] was caused indirectly by defendant
breaking the window and then attempting to enter the victim’s apartment through
the broken window, rather than by any direct action of defendant upon [the
victim].” Id. at *5. Since the injury to the victim was not caused by the
defendant’s direct action upon the victim, the Court in Bates found the evidence
insufficient to support an aggravated robbery conviction. Id.
{¶30} The facts of this case are clearly distinguishable from Bates. Norris,
the victim herein, did not suffer the physical injury by attacking the criminal, like
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the victim in Bates; rather, Norris suffered her physical injury as a direct result of
Pasterchik grabbing and yanking the money bag from her hands—a direct action
by Pasterchik upon Norris. Consequently, we reject Pellegrini’s argument that he,
by virtue of his co-defendant’s actions, did not “inflict” physical harm upon the
victim in this case.
{¶31} Next, Pellegrini argues that the evidence failed to demonstrate that he
recklessly caused the victim physical harm since the injury was completely
unforeseeable as the intent was a simple grab-and-run theft. We disagree. The
evidence in this case demonstrated that Pellegrini provided Pasterchik with inside
information concerning Rays’ depositing procedures. Pellegrini knew that
Pasterchik was planning on taking the money from the Rays employees, and he
knew that such an incident would likely result in a confrontation leading to
physical harm of one or both of the employees. Pellegrini argues that the
particular type of injury Norris suffered was “[o]nly because of a freak catch on a
ring”; and therefore, he could not have appreciated the risk of this particular
injury. It was not necessary that Pellegrini anticipate the exact nature and extent
of Norris’ injury; it was only necessary that he anticipated that Norris would likely
be injured under the circumstances. To hold otherwise defies common sense and
strains the statutory language. Furthermore, the injury Norris sustained is similar
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to the kinds of injuries sustained by victims of a grab-and-run robbery—a strained
and bruised finger. See State v. Taylor, 2d Dist. No. 22564, 2009-Ohio-806, ¶ 20.
{¶32} Upon review of the evidence presented, we cannot conclude that the
State presented insufficient evidence to sustain Pellegrini’s robbery conviction or
that his robbery conviction was against the manifest weight of the evidence.
{¶33} In his fourth assignment of error, Pellegrini argues that his grand
theft conviction was against the manifest weight of the evidence because the State
failed to prove that he acted with purpose to deprive Rays of the property.
Pellegrini argues that he rejected an offer to join in the theft and did not expect any
financial reimbursement. These arguments lack merit.
{¶34} R.C. 2901.22(A) defines “purposely” as follows:
A person acts purposely when it is his specific intention to cause a
certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends
to accomplish thereby, it is his specific intention to engage in
conduct of that nature.
{¶35} Direct evidence is not essential to prove an element of an offense,
and circumstantial evidence is equally probative, especially as to a mental state in
which the sole direct evidence is known only to the accused. Jenks, 61 Ohio St.3d
259, 272. Moreover, since a defendant’s mental state is difficult to demonstrate
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with direct proof, it may be “inferred from the circumstances.” State v. Logan, 60
Ohio St.2d 126, 131 (1979); State v. Clark, 101 Ohio App.3d 389, 405 (8th
Dist.1995).
{¶36} To begin with, we note that Pellegrini did not assert the affirmative
defense of renunciation at trial. R.C. 2923.03(E). Although the evidence failed to
demonstrate that Pellegrini expected any “financial reimbursement” for the
information he provided to Pasterchik, Pellegrini did, in fact, receive proceeds
from the theft. Pasterchik paid Pellegrini money he had supposedly borrowed
from him and paid for an insurance policy for Pellegrini with proceeds from the
theft. Furthermore, Detective Stechschulte testified that Reid and Pasterchik were
trying to minimize Pellegrini’s role in the robbery to protect him; and
consequently, they were not forthcoming about the amount of money Pellegrini
received from the robbery. (May 8-9, 2012 Tr. at 128, 131). Aside from that, the
jury could have concluded that Pellegrini intended to deprive Rays of the money
regardless of whether or not he expected any financial gain given his conduct.
State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 127. Pellegrini
volunteered information to Pasterchik instigating and effectuating the crime, and
continued to do so even after he was aware that Pasterchik was actually going to
complete the crime. Although Pellegrini did not want to be involved in actually
taking the money from the Rays employees, he provided information that Reid
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testified was essential to completing the robbery. (May 8-9, 2012 Tr. at 117).
Given the circumstances of this case, we cannot conclude that the jury lost its way
in convicting Pellegrini of grand theft.
{¶37} Pellegrini’s first, second, and fourth assignments of error are
overruled.
Assignment of Error No. III
Mr. Pellegrini was deprived of effective assistance of counsel.
{¶38} In his third assignment of error, Pellegrini argues that he was denied
effective assistance of counsel because trial counsel: (1) allowed and perpetuated
testimony of his prior bad acts, namely illegally selling prescription drugs; (2)
bolstered the State’s case by calling Adam Reid to the stand; (3) emphasized his
prior bad acts and Reid’s testimony in closing argument; (4) failed to call him as a
witness in light of Reid’s testimony; and, (5) allowed the jury to hear his refusal to
consent to a search of his cell phone during the police interview.
{¶39} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984).
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{¶40} In order to show counsel’s conduct was deficient or unreasonable,
the defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland, 466 U.S. at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,
675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247,
255 (1991). Rather, the errors complained of must amount to a substantial
violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio
St. 3d 136, 141-142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).
{¶41} Prejudice results when “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.
{¶42} Pellegrini first argues that trial counsel was ineffective for failing to
file a motion in limine to redact from his police interview his statement that
Pasterchik owed him $40.00 for sharing drugs with him. We disagree.
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{¶43} As an initial matter, the filing of a motion in limine is generally a
matter of trial strategy. State v. Swiergosz, 197 Ohio App.3d 40, 2012-Ohio-830,
¶ 22 (6th Dist.). Furthermore, Evid.R. 404(B), only excludes “[e]vidence of other
crimes, wrongs, or acts * * * [admitted] to prove the character of a person in order
to show action in conformity therewith.” The evidence may be admissible for
other purposes, however, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.The State did not offer evidence of Pellegrini’s drug use with Pasterchik at trial to
show conformity therewith in the present case; but rather, to show the relationship
between the two men and Pellegrini’s possible motive. (See May 8-9, 2012 Tr. at
18, 147-150). Since the evidence was not clearly barred under Evid.R. 404(B),
trial counsel was not ineffective for failing to file the motion in limine as
Pellegrini argues.
{¶44} Next, Pellegrini argues that trial counsel was ineffective for calling
Reid to testify that he admitted to the robbery and he did not know Pellegrini, facts
already in evidence, and, thereby, opening the door to further testimony
concerning Pellegrini’s sale of illegal drugs.
{¶45} “‘Generally, counsel’s decision whether to call a witness falls within
the rubric of trial strategy and will not be second-guessed by a reviewing court.’”
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State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 217, quoting State v.
Treesh, 90 Ohio St.3d 460, 490 (2001).
{¶46} When asked during his direct testimony whether he had ever met
Pellegrini, Reid testified “[n]ot personally.” (May 8-9, 2012 Tr. at 112). On
cross-examination, the State asked Reid what he meant by “not personally,” and
Reid testified that his brother bought some pills from Pellegrini in the Rays
parking lot. (Id. at 113). Trial counsel was not ineffective for calling Reid to
testify. While trial counsel’s strategy may have been ill-advised in hindsight,
nothing in the record suggests that counsel was aware, or should have been aware,
that Pellegrini sold Reid’s brother drugs prior to calling Reid as a witness. Aside
from that, the jury was already aware of Pellegrini’s illegal drug activity from
viewing the police interview, and we are not persuaded that he suffered prejudice
from this testimony.
{¶47} Pellegrini further argues that trial counsel was ineffective for
reemphasizing his illegal drug activity during closing arguments. We again
disagree. “[T]he manner and content of trial counsel’s closing arguments are a
matter of trial strategy and do not constitute ineffective assistance of counsel.”
State v. Turks, 3d Dist. No. 1-08-44, 2009-Ohio-1837, ¶ 42, citing State v.
Williams, 3d Dist. No. 9-07-61, 2008-Ohio-3887, ¶ 70. After Reid’s testimony
turned out different than trial counsel expected, counsel attempted to explain the
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purpose of Reid’s testimony and to reemphasize that the State bore the ultimate
burden of proof at trial, not the defense. (May 8-9, 2012 Tr. at 135-137). Trial
counsel also suggested that Reid’s testimony was a “trap” set up by the State from
which he could not have escaped. (Id. at 157). While this trial strategy did not
ultimately prevail, we cannot conclude that it amounted to ineffective assistance.
Trial counsel also asked the jury to view the police interview during their
deliberations since Pellegrini repeatedly denied his involvement in the robbery,
despite law enforcement’s allegedly coercive tactics. (Id. at 158-159). Again,
while this strategy did not ultimately persuade the jury, it was not unreasonable to
take this approach, and we will not second-guess this trial strategy on appeal.
{¶48} Next, Pellegrini argues that trial counsel was ineffective for failing to
have him testify and for opening the door on the issue of his illegal drug activity.
We disagree. Initially, we note that there is no indication in the record that
Pellegrini ever requested to be a witness; consequently, we must presume that trial
counsel made a tactical decision to keep him off the witness stand. State v.
McClellan, 3d Dist. No. 1-09-21, 2010-Ohio-314, ¶ 61, citing State v. Solomon, 3d
Dist. No. 9-03-58, 2004-Ohio-2795, ¶ 23. Furthermore, “‘[c]ourts are reluctant to
find on direct appeal that an attorney has been ineffective for failing to call a
witness, because it is difficult to show on direct appeal that a witness’s testimony
could have changed the outcome of the trial.’” Solomon at ¶ 23, quoting State v.
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Hector, 2d Dist. No. 18653 (Mar. 8, 2002). As Pellegrini has already noted, trial
counsel had reasons not to call him as a witness; to wit: his prior drug activity.
Additionally, after viewing the police interview, counsel may have reasonably
concluded that Pellegrini was not a credible, favorable witness. Therefore, trial
counsel was not ineffective for failing to call Pellegrini to testify.
{¶49} Finally, Pellegrini argues that trial counsel was ineffective for
allowing the jury to hear evidence concerning his refusal to consent to the search
of his cell phone. Defendants cannot be penalized for exercising their
constitutional rights; nevertheless, we are not persuaded that trial counsel’s failure
to redact this evidence from the police interview (State’s Ex. 15) amounted to
ineffective assistance. See Doyle v. Ohio, 426 U.S. 610, 618-619, 96 S.Ct. 2240(1976) (right to remain silent under Miranda); State v. O’Dell, 45 Ohio St.3d 140,
147 (1989) (right to trial); State v. Landrum, 53 Ohio St.3d 107, 110 (1990).
{¶50} During the police interview, law enforcement asked Pellegrini if the
cell phone in his possession was the same cell phone he used to send Pasterchik
the text message. (State’s Ex. 15); (May 8-9, 2012 Tr. at 124-126). Pellegrini
stated that it was not the same cell phone, and when law enforcement then asked
for his consent to search it, he refused. (Id.); (Id.). This exchange lasted, at most,
30 seconds, while the interview lasted approximately 30 minutes. (State’s Ex. 15).
The State did not present any other evidence of Pellegrini’s refusal to consent to
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the search of his cell phone. Considering the very limited and isolated reference to
Pellegrini’s refusal to consent to the search, we are not persuaded that Pellegrini
suffered prejudice sufficient to undermine the outcome of the proceedings.
Furthermore, rather than exclude such evidence from the trial, defense counsel, as
a matter of trial strategy, questioned Detective Stechschulte about law
enforcement’s failure to search Pellegrini’s cell phone to show the allegedly
inadequate nature of the police investigation in this case. (May 8-9, 2012 Tr. at
124-125). Consequently, we cannot conclude that trial counsel was ineffective
for not redacting the evidence and instead using it as a matter of trial strategy.
{¶51} Pellegrini’s fourth assignment of error is, therefore, overruled.
{¶52} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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