State v. Baum , 2017 Ohio 981 ( 2017 )

[Cite as State v. Baum, 2017-Ohio-981.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27190
:
v. : Trial Court Case No. 2016-CR-1458
:
ERIC BAUM : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of March, 2017.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
THOMAS J. MANNING, Atty. Reg. No. 0059759, P.O. Box 751484, Dayton, Ohio 45475
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} In this case, Defendant-Appellant, Eric Baum, appeals from his convictions
and sentences for Criminal Trespass, a fourth-degree misdemeanor, and Possession of
Criminal Tools, a first-degree misdemeanor. Baum was originally charged with Burglary,
a third-degree felony, and Possession of Criminal Tools, a fifth-degree felony. The case
was tried before a jury, which found Baum guilty of the lesser-included offense of Criminal
Trespass. The jury also found Baum guilty of Possession of Criminal Tools, but declined
to find that he possessed criminal tools with the intent to commit burglary. Accordingly,
the trial court converted the charge to a first-degree misdemeanor, pursuant to R.C.
2923.24(C). The court then sentenced Baum to 30 days in jail for Criminal Trespass and
180 days in jail for Possession of Criminal Tools, and ordered that the sentences be
served concurrently, for a total of 180 days in jail.
{¶ 2} Baum’s counsel submitted a brief pursuant to Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that he could find no trial court error
that was prejudicial to Baum’s rights that could be argued on appeal. We notified Baum
of his counsel’s submission of an Anders brief, and of his ability to file additional
assignments of error within 60 days. Because Baum has not filed any new assignments
of error, this matter is ready for resolution.
I. Facts and Course of Proceedings
{¶ 3} According to the testimony at trial, Baum was found inside a residence on
Perrine Street in Dayton, Ohio, at around 7:00 p.m. on May 9, 2016. Officers had been
dispatched to the scene on a call about someone entering a vacant residence. No one
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was living in the house at the time, but the owner, Mark Parker, lived in the area and was
renovating the property. The prior owner had died, and Parker had purchased the
property in March 2015, more than a year before the police were called.
{¶ 4} At the time of the break-in, the utilities were on, but the water had been turned
off, and the bottom floor of the house was filled with construction materials. The arresting
officer, John Griffin, also indicated that the second floor did not look as if it were capable
of being lived in. When Griffin arrived, he saw a board propped up against a rear window.
Griffin moved the board and entered the house. Eventually, Baum was found upstairs,
in the attic, on top of a shed-like structure that housed a furnace. There were also three
raccoons in the attic.
{¶ 5} When Baum was apprehended, he was wearing gloves, even though it was
a nice May day. Baum also had a flashlight, a small folding knife inside his waistband,
and a key chain with some type of multi-tool, almost like a Swiss Army knife.
{¶ 6} At trial, Baum testified in his own defense. He said that he lived in the area,
near the house on Perrine. Baum saw Parker doing exterior painting on the Perrine
house in 2015, but said that, to his knowledge, nothing had been done on the interior or
exterior of the property since May 2015. Baum indicated that from November 2015 to
April 2016, his own property had been burglarized dozens, perhaps “hundreds” of times,
and that he went inside the Perrine Street house to see if any of his property was in there.
He claimed to have previously seen some of his property on the outside of the Perrine
home, specifically, his children’s Halloween costumes. Baum admitted that he was
trespassing in the house and did not have permission to be there. He denied that he
possessed any of the items on his person with criminal purpose. Baum’s explanation for
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the gloves was that he had ringworm and wore the gloves almost constantly. He also
carried a flashlight because the power had been turned off at his own home, and he
needed the light to see inside his house. In addition, Baum stated that he collected
pocketknives.
{¶ 7} As was noted, Baum was charged with Burglary, a third-degree felony, and
Possession of Criminal Tools, a fifth-degree felony. After the close of evidence, the trial
court instructed the jury on the lesser-included offense of Criminal Trespass. When the
jury returned its verdict, it had found Baum guilty of Criminal Trespass, and Possession
of Criminal Tools. However, the felony intent part of the Criminal Tools offense was left
blank. As a result, the trial found Baum guilty of Criminal Trespass and the misdemeanor
crime of Possession of Criminal Tools, and sentenced Baum as noted above.
II. Potential Assignments of Error
{¶ 8} Baum’s counsel has identified four potential issues that could arguably
support an appeal. These include: (1) whether the conviction is against the manifest
weight of the evidence; (2) whether the trial court erred in overruling Baum’s motion for
acquittal under Crim.R. 29; (3) whether Baum’s counsel was ineffective by failing to
secure a time waiver to conduct additional discovery, including obtaining a transcript of
the preliminary hearing in Dayton Municipal Court, and failing to file a request that Baum’s
competency be evaluated: and (4) whether the trial court erred in failing to grant a trial
continuance or in failure to exclude a DVD of a cruiser camera after technical issues
prevented Baum and his counsel from viewing the DVD in its entirety.
{¶ 9} “We are charged by Anders to determine whether any issues involving
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potentially reversible error that are raised by appellate counsel or by a defendant in his
pro se brief are ‘wholly frivolous.’ * * * If we find that any issue presented or which an
independent analysis reveals is not wholly frivolous, we must appoint different appellate
counsel to represent the defendant.” State v. Marbury, 2d Dist. Montgomery No. 19226,
2003-Ohio-3242, ¶ 7, citing Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493.
(Other citation omitted.)
{¶ 10} “Anders equates a frivolous appeal with one that presents issues lacking in
arguable merit. An issue does not lack arguable merit merely because the prosecution
can be expected to present a strong argument in reply, or because it is uncertain whether
a defendant will ultimately prevail on that issue on appeal. An issue lacks arguable merit
if, on the facts and law involved, no responsible contention can be made that it offers a
basis for reversal.” (Citation omitted.) Id. at ¶ 8.
A. Manifest Weight and Sufficiency of the Evidence
{¶ 11} As was indicated, Baum’s first and second potential assignments of error
alleged that his convictions were based on insufficient evidence and were against the
manifest weight of the evidence.
{¶ 12} “A sufficiency-of-the-evidence argument challenges whether the state has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or to sustain the verdict as a matter of law.” State v. Cherry, 171 Ohio App.3d
375, 2007-Ohio-2133, 870 N.E.2d 808, ¶ 9 (2d Dist.), citing State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). “The proper test to apply to the inquiry is the
one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259,
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574 N.E.2d 492: ‘An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. 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.’ ” Cherry at ¶ 9.
{¶ 13} In contrast, “[w]hen a conviction is challenged on appeal as being against
the weight of the evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness credibility, 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. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8,
quoting Thompkins at 387. “A judgment should be reversed as being against the
manifest weight of the evidence ‘only in the exceptional case in which the evidence
weighs heavily against the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 14} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th Dist. Franklin No.
10AP-881, 2011-Ohio-3161, ¶ 11. Consequently, “a determination that a conviction is
supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”
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(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198,
¶ 15.
{¶ 15} At trial, Baum admitted that he had trespassed on the property without
permission, so there can be no dispute that the guilty verdict for Criminal Trespass was
supported by the weight of the evidence. Regarding Possession of Criminal Tools, R.C.
2923.24(A) provides that “[n]o person shall possess or have under the person’s
possession any substance, device, instrument or article, with purpose to use it criminally.”
However, this crime “is not limited to possession with the purpose to commit theft; rather,
it is broad enough to include any criminal purpose as the requisite intent.” State v. Talley,
18 Ohio St.3d 152, 156, 480 N.Ed.2d 439 (1985).
{¶ 16} Because the term “ ‘criminally’ is not defined in the statute, * * * it must be
given its plain and ordinary meaning.” (Citations omitted.) State v. Chappell, 127 Ohio
St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 17. In Chappell, the court further stated
that:
The term “criminally” has varying definitions, including (1) according
to criminal law, (2) in a criminal manner, i.e., in violation of law, and (3)
reprehensively, disgracefully, or shamefully. Webster's Third New
International Dictionary (1986) 537. The most relevant of the three
definitions in today's case are “according to criminal law” and “in a criminal
manner, i.e., in violation of law.” When either definition of “criminally” is
used in the context of possessing criminal tools under R.C. 2923.24(A), the
statutory language is susceptible of only one interpretation: the ordinary
meaning of “criminally” is not limited to violations of Ohio law and plainly
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encompasses violations of any law, including offenses defined under Ohio
law and federal law.
(Emphasis sic.) Id. at ¶ 18.
{¶ 17} Chappell involved a charge of Possession of Criminal Tools, in which the
State advised in a bill of particulars that “it intended to introduce evidence that the
underlying felony was Chappell's purpose to violate federal copyright law under Section
506, Title 17, U.S. Code.” Id. at ¶ 6. The defendant argued that he could not be
prosecuted for violating R.C. 2923.24 in connection with offenses unless they were
violations listed in the Ohio Revised Code. Id. at ¶ 15. After reciting the ordinary
meaning of “criminally,” the Supreme Court concluded that R.C. 2901.04(D) expanded
the definition of “criminal offenses in certain circumstances,” and that the court could not
agree with the defendant’s narrow interpretation that R.C. 2923.24 should be limited to
offenses under Ohio law. Id. at ¶ 15 and 25.
{¶ 18} In this context, the court commented that “[t]he state is not prosecuting [the
defendant] for violating federal copyright law, nor is the state seeking to have a penalty
imposed against [him] for violating federal copyright law. And the state is not required to
prove that [the defendant] violated federal copyright law in order to obtain a conviction
against him for possessing criminal tools. Rather, the state need only show that his
purpose was to violate the law.” Id. at ¶ 22.
{¶ 19} There is no question that Baum intended to violate the law with respect to
Criminal Trespass. During his testimony, Baum admitted that he was inside the Perrine
Street property on May 9, 2016, that he went in through a back window, that he did not
have permission to be there, that he was in the property for 15-20 minutes, and that he
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ran up to the attic to hide from the police Transcript of Proceedings, Vol. II, pp. 359,
378-379, and 380.
{¶ 20} Based on Baum's own testimony, he knowingly entered the property without
privilege, and this would have provided the required predicate for a conviction of
Possession of Criminal Tools. As a result, any arguments regarding sufficiency of the
evidence or manifest weight of the evidence would be frivolous.
B. Alleged Ineffectiveness of Trial Counsel
{¶ 21} Baum’s third potential assignment of error alleges that trial counsel was
ineffective on two grounds: (1) by failing to secure a time waiver to conduct additional
discovery, including obtaining a transcript of the preliminary hearing in Dayton Municipal
Court; and (2) by failing to file a request that Baum’s competency be evaluated.
{¶ 22} “In order to prevail on a claim of ineffective assistance of counsel, the
defendant must show both deficient performance and resulting prejudice.” State v.
Matthews, 189 Ohio App.3d 446, 2010-Ohio-4153, 938 N.E.2d 1099, ¶ 39 (2d Dist.), citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Trial
counsel is entitled to a strong presumption that his conduct falls within the wide range of
effective assistance, and to show deficiency, the defendant must demonstrate that
counsel's representation fell below an objective standard of reasonableness.” Id.{¶ 23} “The adequacy of counsel's performance must be viewed in light of all of
the circumstances surrounding the trial court proceedings. * * * Hindsight may not be
allowed to distort the assessment of what was reasonable in light of counsel's perspective
at the time.” (Citations omitted.) State v. Jackson, 2d Dist. Champaign No. 2004-CA-
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24, 2005-Ohio-6143, ¶ 29.
{¶ 24} “Even assuming that counsel's performance was ineffective, the defendant
must still show that the error had an effect on the judgment. * * * Reversal is warranted
only where the defendant demonstrates that there is a reasonable probability that, but for
counsel's errors, the result of the proceeding would have been different.” Id. at ¶ 30,
citing State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
{¶ 25} Regarding the first alleged point of ineffective assistance, the record reveals
that the preliminary hearing was discussed at p. 168 of the transcript, during a sidebar
conference concerning whether defense counsel could question Parker about a
statement he had made at the preliminary hearing. The statement was that Parker had
last been at the Perrine St. property three days prior to the burglary. This contrasted
with Parker’s trial testimony that he had been at the property the day before the break-in.
However, defense counsel did not have a transcript of the preliminary hearing; she was
referring to her recollection of what she had asked Parker at the preliminary hearing.
Transcript of Proceedings, Vol. I, p. 168. Based on a finding of a “good faith” basis for
inquiring, the trial court allowed defense counsel to ask Parker about this statement, but
indicated that if Parker said he did not recall, that would be the end of the inquiry. Id. at
p. 170.
{¶ 26} Defense counsel then asked Parker about his testimony at the preliminary
hearing. Parker said he believed he had said then that he was at the property the day
before the break-in; he did not recall saying he had last been there three days before.
Id. at pp. 171-172. However, this testimony was irrelevant and could not possibly have
affected the outcome of the trial. The testimony was directed to the State’s attempt to
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prove that the property was “occupied,” for purposes of the Burglary charge. However,
the jury did not find Baum guilty of that charge; the jury found him guilty of Criminal
Trespass, which did not require a finding that the property was occupied. Instead,
Criminal Trespass required a finding only that Baum entered the property without
permission – which he admitted.
{¶ 27} As part of the ineffectiveness of counsel claim, Baum also raises a potential
issue about further discovery trial counsel should have done. At pp. 274-275 of the
transcript, defense counsel indicated that the case had been tried quickly due to speedy
trial concerns and her belief that Baum did not deserve to be in jail any longer. Counsel
further stated that when she was able to speak that day with witnesses who were next-
door neighbors of the Perrine Street property, she was told about another potential
witness who lived on the other side of the property. According to defense counsel, “this
individual would only be relevant for basically one statement. Eric – Mark Parker
allegedly told this guy that he uses 105 Perrine to store materials in.” Id. at p. 277. After
discussion, the court indicated that the statement would not be admissible on rebuttal
because it had not been first presented to Parker, and he did not deny it. Id. at p. 278.
Defense counsel then decided not to call the witness. Id. at p. 279.
{¶ 28} As with the evidence from the preliminary hearing, this testimony would be
irrelevant for purposes of appeal, because it was intended to dispute the State’s
contention that the property was occupied for purposes of the Burglary charge. This
argument, therefore, would be frivolous.
{¶ 29} The second claim of alleged ineffective assistance of counsel pertains to
whether trial counsel should have filed a request to evaluate Baum’s competency based
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on information trial counsel received from witnesses who knew Baum. This issue was
discussed at pp. 253-257 of the trial transcript.
{¶ 30} “It has long been recognized that ‘a person [who] lacks the capacity to
understand the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to a trial.’ ” State v. Smith,
89 Ohio St.3d 323, 329, 731 N.E.2d 645 (2000), quoting Drope v. Missouri, 420 U.S. 162,
171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). “Fundamental principles of due process
require that a criminal defendant who is legally incompetent shall not be subjected to trial.”
State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995), citing Pate v. Robinson,
383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). (Other citation omitted.)
{¶ 31} This issue is governed in Ohio by R.C. 2945.37(B), which provides that:
In a criminal action in a court of common pleas, a county court, or a
municipal court, the court, prosecutor, or defense may raise the issue of the
defendant's competence to stand trial. If the issue is raised before the trial
has commenced, the court shall hold a hearing on the issue as provided in
this section. If the issue is raised after the trial has commenced, the court
shall hold a hearing on the issue only for good cause shown or on the court's
own motion.
{¶ 32} R.C. 2945.37(C)-(E) provide procedures for holding such a hearing if
determined to be needed. R.C. 2945.37(G) further states that:
A defendant is presumed to be competent to stand trial. If, after a hearing,
the court finds by a preponderance of the evidence that, because of the
defendant's present mental condition, the defendant is incapable of
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understanding the nature and objective of the proceedings against the
defendant or of assisting in the defendant's defense, the court shall find the
defendant incompetent to stand trial and shall enter an order authorized by
section 2945.38 of the Revised Code.
{¶ 33} In State v. Bock, 28 Ohio St.3d 108, 502 N.E.2d 1016 (1986), the Supreme
Court of Ohio stated that:
The failure to hold a competency hearing is harmless error where the
defendant proceeds to participate in the trial, offers his own testimony in
defense and is subject to cross-examination, and the record fails to reveal
sufficient indicia of incompetency.
Id. at paragraph one of the syllabus.
{¶ 34} Subsequently, in State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779
N.E.2d 1017, the court stressed that:
[T]he decision whether to hold a competency hearing once trial has begun
is in the court's discretion. State v. Rahman (1986), 23 Ohio St.3d 146,
156, 23 OBR 315, 492 N.E.2d 401. The right to a hearing rises to the level
of a constitutional guarantee when the record contains sufficient “indicia of
incompetency” to necessitate inquiry to ensure the defendant's right to a fair
trial. State v. Were, 94 Ohio St.3d 173, 761 N.E.2d 591, paragraph two of
the syllabus; State v. Berry, 72 Ohio St.3d at 359, 650 N.E.2d 433.
Objective indications such as medical reports, specific references by
defense counsel to irrational behavior, or the defendant's demeanor during
trial are all relevant in determining whether good cause was shown after the
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trial had begun. State v. Chapin (1981), 67 Ohio St.2d 437, 21 O.O.3d
273, 424 N.E.2d 317, paragraph one of the syllabus.
Id. at ¶ 37.
{¶ 35} After reviewing the record, we find the competency argument frivolous.
During the trial, defense counsel indicated that she had subpoenaed two people who lived
next door to 105 Perrine Street because her investigator had not been able to reach them
prior to trial. In speaking with these witnesses during trial, counsel had just learned that
they had seen a “downhill slide, mental-health wise” with the defendant. Transcript of
Proceedings, Vol. I, p. 253. Counsel further stated that this was something she had
observed in working with Baum over the last week, but had never directly addressed with
him. Id. Counsel then said: “ * * * competency was never an issue for me. He is
articulate, very well-spoken, smart. He’s a business owner. You know, so I – he’s
definitely competent to testify.” Id. at p. 254.
{¶ 36} Baum’s counsel then explained that she wanted Baum to have the
opportunity to know that there were options for trial in terms of defense tactics, one being
a not guilty by reason of insanity (“NGRI”) defense. Id. Counsel also stated that Baum
had said he did not want to pursue such a defense, and they would waive the NGRI
defense. Id. At this point, the court questioned Baum about the NGRI defense, and the
following exchange occurred:
THE COURT: The only point –
***
THE COURT: – we’re trying to make clear is whether or not that
would be a defense that you would want to present to the jury, a defense of
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not guilty by reason of insanity.
THE DEFENDANT: I hadn’t actually had any – anything in
particular, * * * presented to me as – as, * * * a – cause for, * * * doubt or a
cause for, * * * you know, reason –
***
THE DEFENDANT: – for that. Yeah, if there was something * * *
in particular that * * * you know, something I’ve said, something –
***
THE DEFENDANT: – I’d suggested, maybe something that – that
I’d said that * * * misrepresented what I was actually, you know, intended to
* * * convey, you know, something that was going to – if I come off wrong,
you know, I – I could have had * * * an opportunity to * * * either one, rectify
the miscommunication or * * * I * * * could’ve * * * used that example as,
perhaps, something that was outside of, my * * * awareness up to that point,
and maybe something a mental health professional would want to evaluate.
But I’ve had mental health evaluations – * * * I think, two – in the last
eight years. And, * * * I haven’t had any diagnoses of * * * any sort, * * *
neuroses, psychoses disorder, anything. So –
***
THE DEFENDANT: – I just personally * * * there were things, I think
that we didn’t want to get into for our purposes here –
***
THE DEFENDANT: – that * * * would’ve been rather * * * admittedly
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convoluted.
***
“Complex,” rather, would be a better word.
***
THE DEFENDANT: And so we won’t get into that. And I, * * *
understand that. But that’s not something that’s gonna happen, so –
THE COURT: Okay.
THE DEFENDANT: – I appreciate the concern.
THE COURT: Okay. Good. I just wanted to make a record of
that. We’ve done that.
Transcript of Proceedings, Vol., pp. 256-257.
{¶ 37} As an initial matter, there would have been no reason to file a request for a
hearing, because trial counsel did not believe Baum was incompetent. When witnesses
expressed some concern, counsel properly brought the matter to the attention of Baum
and the trial court, even though counsel felt Baum was competent.
{¶ 38} Furthermore, Baum affirmatively rejected the NGRI defense, and there was
also no indicia at trial of incompetency. “Incompetency is defined in Ohio as the
defendant's inability to understand ‘ * * * the nature and objective of the proceedings
against him or of presently assisting in his defense.’ R.C. 2945.37(A). Incompetency
must not be equated with mere mental or emotional instability or even with outright
insanity. A defendant may be emotionally disturbed or even psychotic and still be
capable of understanding the charges against him and of assisting his counsel.” Bock,
28 Ohio St.3d at 110, 502 N.E.2d 1016.
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{¶ 39} As counsel noted, Baum was quite articulate. Baum also stated that he
had never had any diagnoses of mental problems. Thus, there would have been no
reason for the trial court to hold a competency hearing.
{¶ 40} Accordingly, we find no non-frivolous issues regarding whether trial counsel
rendered ineffective assistance.
C. Issues Regarding Cruise Camera Video
{¶ 41} Baum’s final potential assignment of error raises the issue of whether the
trial court erred by failing to either grant a continuance or exclude DVD video taken from
a cruiser camera. According to Baum, the trial court should have allowed him to make
an informed decision about whether he should take the stand in his own defense after
technical issues prevented him and his trial counsel from viewing the video in its entirety.
Consideration of this issue occurred at pp. 291-301 and 326-341 of the Transcript of
Proceedings, Vol. II.
{¶ 42} After reviewing the record, we find this potential assignment of error
frivolous. As an initial point, Baum somewhat mischaracterizes what occurred. It is true
that trial counsel and Baum were unable to view the video prior to trial due to technical
issues. However, when this issue was raised with the trial court, the court stated that
Baum would be permitted to view the video in its entirety, if he chose to do so, before
getting on the stand. Id. at pp. 295 and 299. The court also indicated it would give
Baum time, while another witness testified, to decide if he wanted to testify, and if so,
whether he wished to view the video in its entirety. Id. at pp. 300-301.
{¶ 43} After the witnesses finished testifying, the court asked Baum if he wished to
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testify, and Baum said, “Oh, absolutely.” Id. at p. 326. At that point, the court discussed
with Baum whether his decision to testify was voluntary, and Baum was then allowed to
watch as much of the video as he wished. Id. at pp. 327-342.
{¶ 44} As a final matter, the State did not play the video to the jury during Baum’s
cross-examination, even though Baum told the police three different stories on the video
about why he had been in the Perrine Street house. Id. at pp. 296-297. Baum was also
acquitted of Burglary, and, as has been noted, admitted he was in the house without
permission. As a result, any argument pertaining to the video is irrelevant.
III. Anders Review
{¶ 45} We have conducted a thorough and complete examination of all the
proceedings to decide if this appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80,
109 S.Ct. 346, 102 L.Ed.2d 300 (1988), citing Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18
L.Ed.2d 493. After reviewing the entire record, including the filings, the written transcript
of the trial and sentencing hearing, the Presentence Investigation Report, and the
sentencing entry, we cannot find any non-frivolous issues for review. Accordingly, the
judgment of the trial court is affirmed.
.............
HALL, P.J. and DONOVAN, J., concur.
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Copies mailed to:
Mathias H. Heck, Jr.
Andrew T. French
Thomas J. Manning
Eric Baum
Hon. Dennis J. Langer