State v. Barnett , 2015 Ohio 224 ( 2015 )

[Cite as State v. Barnett, 2015-Ohio-224.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-26
v.
ROBBY B. BARNETT, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2013-CR-55
Judgment Affirmed
Date of Decision: January 26, 2015
APPEARANCES:
Valerie Kunze for Appellant
R. Andrew Augsburger for Appellee
Case No. 2-13-26
WILLAMOWSKI, J.
A. Introduction
{¶1} Defendant-appellant, Robby B. Barnett (“Barnett”), brings this appeal
from the judgment of the Common Pleas Court in Auglaize County, Ohio, which
entered his conviction after a jury found him guilty of involuntary manslaughter, a
felony of the first degree, in violation of R.C. 2903.04(A); illegal manufacture of
drugs, a felony of the second degree in violation of R.C 2925.04(A),(C)(3)(a); and
illegal assembly or possession of chemicals for manufacture of drugs, a felony of
the third degree in violation of R.C. 2925.041(A). Upon merger, the trial court
sentenced Barnett to ten years in prison on involuntary manslaughter charge only.
Barnett now appeals, challenging the trial court’s admission of evidence at the jury
trial and raising a claim of ineffective assistance of counsel. For the reasons that
follow, we affirm the trial court’s judgment.
B. Relevant Facts and Procedural History1
{¶2} On May 4, 2011, shortly before midnight, there was a fire in Auglaize
County in a trailer belonging to one Jeff Aldrich (“Aldrich”). (Jury Trial Tr. at
180.) When the emergency personnel arrived, Aldrich was found dead on his
couch. (Tr. at 186-188.) An investigation led the police to Barnett. (Tr. at 852-
853, 865.) On May 17, 2011, upon a search of Barnett’s residence located in
1
The factual and procedural history of the case is significantly reduced in this opinion and includes only
the information necessary to resolve the issues presented on appeal.
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Logan County, the police found and seized evidence of drug manufacturing. (Tr.
at 550-560; State’s Ex. 136-149.) The items found were consistent with cooking
methamphetamine and were similar to items found in Aldrich’s trailer. (Tr. at
550-560; 735-738; , 896-898.) Additionally, the residence bore signs of a prior
fire or fires. (Id.; Ex. 137-142, 171; 669-671.) Based on the evidence found in
Barnett’s apartment, on September 13, 2011, charges were filed against him in
Logan County for illegal assembly or possession of chemicals for the manufacture
of drugs, illegal manufacture of drugs, and possession of drugs. See State v.
Barnett, 3d Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶ 2 (June 17, 2013). Those
charges were based on Barnett’s actions in Logan County and did not directly
relate to the Auglaize County fire in Aldrich’s trailer. See id. Although we are not
reviewing the Logan County case at this point, the issues before us require that we
mention it.
{¶3} On February 26, 2013, Barnett was charged in the current case. The
indictment alleged that on May, 4, 2011, in Auglaize County, Ohio, Barnett
caused the death of another as a proximate result of committing or attempting to
commit a felony. (R. at 1, Indictment.) It further alleged that Barnett possessed
chemicals for the manufacture of methamphetamine and engaged in illegal
manufacture of methamphetamine on the same date in Auglaize County. (Id.)
These charges were connected to the fire in Aldrich’s residence in Auglaize
County on May 4, 2011. (R. at 56, State’s Resp. Def.’s Req. for Bill of
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Particulars.) In particular, the State alleged that the fire at Aldrich’s residence,
which resulted in Aldrich’s death, was caused by the illegal manufacturing of
methamphetamine in which Barnett participated on May 4, 2011. (Id.)
{¶4} Barnett pled not guilty and the matter was scheduled for a jury trial.
The trial court appointed attorney Gerald Siesel (“attorney Siesel”) from the
Auglaize County Public Defender’s Office as Barnett’s defense counsel. (R. at
16.) On August 22, 2013, Barnett filed a motion in limine, requesting that the
State be prevented “from introducing into evidence at trial testimony of prior
and/or similar acts of the Defendant resulting from the search of defendant’s
former residence * * * [in] Logan County, Ohio, pursuant to a warrant to search
issued on May 17, 2011.”2 (R. at 184.) Barnett alleged “that the admission of this
evidence as ‘other prior and/or similar acts’ ” would violate Ohio Evid.R. 402,
403, and 404(B), as well as his due process right, the United States Constitution,
and the Ohio Constitution. (Id.) The trial court conducted hearings on the matter
and denied the motion. (R. at 211, J. Entry, Sep. 10, 2013.) The trial court found
that
[t]he evidence is relevant pursuant to Evidence Rule 403, and for the
most part is not really “other act” testimony but is circumstantial
evidence of the Defendant’s involvement in the instant acts. * * *
[E]vidence of his possession of materials to make methamphetamine
2
Barnett further requested that the State “be prevented from presenting in its case in chief at trial in this
matter evidence relating to the Defendant’s conviction for assembly/possession of chemicals used in the
manufacture of methamphetamines * * * in the Logan County Common Pleas Court, Case No. CR-11-08-
0157.” (R. at 184.) The State indicated that it would not use evidence of the conviction at trial (Pending
Mot. Hr’g at 8), and no assignment of error is raised with respect to that.
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is relevant to the charges, as well as evidence of prior fires within his
other property in Logan County goes to show scienter of the volatile
nature of cooking methamphetamine. Even if a portion of the
testimony is considered “other act” evidence, the testimony is
relevant as being within “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident” with Evid.R. 404(B).
(Id.)
{¶5} The jury trial started on September 16, 2013, and lasted five days.
The jury found Barnett guilty of all counts in the indictment and this appeal
followed.
C. Assignments of Error
{¶6} Through his counsel, Barnett raised the following assignment of error,
which we label as the first assignment of error.
First Assignment of Error
Robby Barnett’s due process and fair trial rights were violated
when the trial court allowed the State to present unrelated and
prejudicial evidence about his home in Logan County. Ohio
Evidence Rules 403 and 404(B), R.C. 2945.59, Fifth and
Fourteenth Amendments to the United States Constitution, and
Section 16, Article I of the Ohio Constitution.
{¶7} After the briefs with respect to this assignment of error had been filed
by both parties, Barnett submitted a supplemental brief, raising an additional
assignment of error pro se. We authorized the supplemental brief, and we
consider this pro se issue, which we label as the second assignment of error.
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Second Assignment of Error
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL,
PURSUANT TO STRICKLAND V. WASHINGTON, [466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].
D. Law and Analysis
First Assignment of Error—Other Acts Evidence
{¶8} Barnett’s first assignment of error challenges admissibility of the
evidence. In order for evidence to be admissible it must be relevant. Evid. R. 402.
“ ‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Evid. R. 401. Generally,
“[a]ll relevant evidence is admissible.” Evid. R. 402. This general principle has
several exceptions, which are encompassed in Evid.R. 402, 403, and 404. State v.
Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 11-12. As
applicable to this appeal, Evid.R. 404(B) provides, in pertinent part,
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. 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.
Ohio Evid. R. 404. The Ohio Supreme Court explained this rule as follows
Evid.R. 404 codifies the common law with respect to evidence of
other acts of wrongdoing. State v. Lowe, 69 Ohio St.3d 527, 530,
634 N.E.2d 616 (1994). The rule contemplates acts that may or may
not be similar to the crime at issue. State v. Broom, 40 Ohio St.3d
277, 282, 533 N.E.2d 682 (1988). If the other act is offered for some
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relevant purpose other than to show character and propensity to
commit crime, such as one of the purposes in the listing, the other
act may be admissible. Id. Another consideration permitting the
admission of certain other-acts evidence is whether the other acts
“form part of the immediate background of the alleged act which
forms the foundation of the crime charged in the indictment” and are
“inextricably related” to the crime. State v. Curry, 43 Ohio St.2d 66,
73, 330 N.E.2d 720 (1975). See also Broom at 282, 533 N.E.2d 682.
Morris at ¶ 13. Therefore, although Evid.R. 404(B) “precludes admission of
evidence of crimes, wrongs, or acts offered to prove the character of an accused to
demonstrate conforming conduct, * * * it affords the trial court discretion to admit
other acts evidence for any other purpose.” State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, 983 N.E.2d 1278, ¶ 2 (2012). The Supreme Court noted that the
discretion afforded by Evid.R. 404(B) to the trial court is “broad.” Id. at ¶ 17.
{¶9} Barnett alleges that the trial court erred when it “allowed the State to
present unrelated and prejudicial evidence about his home in Logan County” at his
trial in Auglaize County. (App’t Br. at 5.) Of note, this assignment of error does
not relate to the Logan County criminal case.3 Rather, the focus is on the evidence
from Barnett’s home, which suggested his involvement in manufacturing
methamphetamine. (See id. at 7.) In particular, the challenges on appeal refer to
the evidence of drug manufacturing found in Barnett’s residence in Logan County,
testimony about prior fires in his residence, and photographs of the inside of his
residence, showing evidence of drug manufacturing. (App’t Br. at 3-4.) Barnett
3
See our comment in fn. 2 above.
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asserts that this evidence violated Evid.R. 404(B), because it was used for an
impermissible purpose of showing that Barnett must have cooked
methamphetamine in Auglaize County because he “did the same thing in Logan
County.” (App’t Br. at 7.)
{¶10} We review the trial court’s decision to admit evidence under the
abuse of discretion standard and will not reverse its judgment unless it “lacks a
‘sound reasoning process.’ ” Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972
N.E.2d 528, at ¶ 14 , quoting AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Applying
this standard, we give deference to the trial court’s conclusions and reject
Barnett’s assertions that the trial court abused its discretion in the instant case.
{¶11} This case hinged upon proving that Barnett was cooking
methamphetamine in Aldrich’s trailer on May 4, 2011. The trial court determined
that the evidence found in Barnett’s apartment was a circumstantial evidence that
linked him to methamphetamine production in Aldrich’s trailer. Barnett’s
possession of materials to make methamphetamine was not used at this trial to
show that he manufactured methamphetamine in Logan County. Rather, the
evidence found in his apartment, consistent with the evidence found in Aldrich’s
trailer, was probative of a finding that Barnett was involved in methamphetamine
production in Aldrich’s trailer in Auglaize County. (See Tr. at 550-560, 668-671,
735-738, 896-901; see also Ex. 136-149.) The mere fact that the same evidence
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was used to prove a case in Logan County does not make it impermissible other
act evidence.
{¶12} The trial court found that even if the testimony about Barnett’s
Logan County home fell under the scope of “other acts” evidence of Evid.R.
404(B), it was admissible within its exception, which allows such testimony if it is
within “proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” (R. at 211, quoting Evid.R. 404(B).)
This finding is supported by the record and it is not so unreasonable as to “create[]
material prejudice” to Barnett. See Morris, 132 Ohio St.3d 337, 2012-Ohio-2407,
972 N.E.2d 528, at ¶ 14.
{¶13} The evidence collected in Barnett’s residence in Logan County
showed that similar drug manufacturing tools were found in both places: Barnett’s
apartment and Aldrich’s trailer. (See Tr. at 550-560, 735-738, 896-898; see also
Ex. 136-149.) Additionally, evidence of prior fires, consistent with fires caused by
illegal manufacture of methamphetamine was found. (Tr. at 668-671.) These
similarities found in both places made more probable the fact that the same person
cooked methamphetamine in both places. Thus, this evidence was relevant to
showing identity, or a similar modus operandi, a permissible purpose under
Evid.R. 404(B). State v. Lowe, 69 Ohio St.3d 527, 531, 1994-Ohio-345, 634
N.E.2d 616 (1994) (“Other acts may also prove identity by establishing a modus
operandi applicable to the crime with which a defendant is charged.”).
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“ ‘Other acts’ may be introduced to establish the identity of a
perpetrator by showing that he has committed similar crimes and
that a distinct, identifiable scheme, plan, or system was used in the
commission of the charged offense.” State v. Smith (1990), 49 Ohio
St.3d 137, 141, 551 N.E.2d 190, 194. While we held in Jamison that
“the other acts need not be the same as or similar to the crime
charged,” Jamison, syllabus, the acts should show a modus operandi
identifiable with the defendant. State v. Hutton (1990), 53 Ohio
St.3d 36, 40, 559 N.E.2d 432, 438.
A certain modus operandi is admissible not because it labels a
defendant as a criminal, but because it provides a behavioral
fingerprint which, when compared to the behavioral fingerprints
associated with the crime in question, can be used to identify the
defendant as the perpetrator. Other-acts evidence is admissible to
prove identity through the characteristics of acts rather than through
a person’s character. To be admissible to prove identity through a
certain modus operandi, other-acts evidence must be related to and
share common features with the crime in question.
Id. at 531.
{¶14} Barnett contends that the items found in his apartment and in
Aldrich’s trailer were “not unique to Mr. Barnett’s Logan County home or Mr.
Aldrich’s trailer,” and for that reason, they were not sufficient to constitute a
“behavioral fingerprint” under Lowe. (Reply Br. at 2) Yet, the modus operandi
exception does not require unique items; rather, it applies to “acts forming a
unique, identifiable plan of criminal activity.” Lowe at 531, quoting State v.
Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus. Thus, in Jamison,
the Ohio Supreme Court found the same modus operandi although the acts
performed by the defendant were not unique, and not even identical to the crime in
question, because in spite of certain differences, “[t]he acts remained probative as
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to identity.” Jamison at 186-187. “Other-acts evidence need be proved only by
substantial proof, not proof beyond a reasonable doubt.” Id. at 187, citing State v.
Carter, 26 Ohio St.2d 79, 83, 269 N.E.2d 115 (1971). We do not find abuse of
discretion in the trial court’s finding that the test for modus operandi was satisfied
because the items found in Barnett’s apartment and the evidence of fires
sufficiently resembled those found in Aldrich’s trailer. Therefore, they satisfy the
“substantial proof” requirement by sharing “common features with the crime in
question.” Lowe at 530, 531.
{¶15} Barnett takes issue with the fact that the trial court did not conduct a
written prejudice analysis in its journal entry. He quotes the Ohio Supreme
Court’s decision, where a three-part analysis for admissibility of other acts
evidence was outlined as follows:
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the
determination of the action more or less probable than it would be
without the evidence. Evid.R. 401. The next step is to consider
whether evidence of the other crimes, wrongs, or acts is presented to
prove the character of the accused in order to show activity in
conformity therewith or whether the other acts evidence is presented
for a legitimate purpose, such as those stated in Evid.R. 404(B). The
third step is to consider whether the probative value of the other acts
evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R 403.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. Barnett
demands reversal of his conviction alleging that he was prejudiced because four
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witnesses testified “about the contents of his Logan County home,” which
disclosed other-acts evidence. (App’t Br. at 8.)
{¶16} We first note that in order to warrant exclusion of evidence, its
probative value must be “substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” (Emphasis
added.) Evid. R. 403. As the Ohio Supreme Court explained:
“ ‘Exclusion on the basis of unfair prejudice involves more than a
balance of mere prejudice. If unfair prejudice simply meant
prejudice, anything adverse to a litigant’s case would be excludable
under Rule 403. Emphasis must be placed on the word “unfair.”
Unfair prejudice is that quality of evidence which might result in an
improper basis for a jury decision. Consequently, if the evidence
arouses the jury’s emotional sympathies, evokes a sense of horror, or
appeals to an instinct to punish, the evidence may be unfairly
prejudicial. Usually, although not always, unfairly prejudicial
evidence appeals to the jury’s emotions rather than intellect.’ ”
State v. Crotts, 104 Ohio St.3d 432, 437, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 24
(2004), quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 2001-
Ohio-248, 743 N.E.2d 890 (2001).
{¶17} We do not find that any unfair prejudice substantially outweighed
the probative value of the evidence in this case. The trial court gave specific
limiting instructions to the jury, explaining that they were not allowed to use the
testimony about “potential commission of other acts other than the offenses with
which the Defendant is charged in this trial” for a finding that Barnett “acted in
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conformity or in accordance” with those acts. (Tr. at 889.) The trial court
explained,
If you find that the evidence or [sic] other acts is true and the
Defendant committed them, you may consider that evidence only for
the purpose of deciding whether it proves the absence of mistake or
accident, the Defendant’s motive, opportunity, intent, purpose,
preparation or plan to commit the offense charged in this trial,
knowledge of circumstances surrounding the offense charged in this
trial, the identity of the person who committed the offense in this
trial, but that evidence cannot be considered for any other purpose.
(Tr. at 899-900.) In Williams, supra, at ¶ 24, the Ohio Supreme Court held that
where the trial court instructed the jury that the evidence could not be used for
impermissible propensity findings, the defendant was not unduly prejudiced.
{¶18} For the foregoing reasons, we hold that the trial court did not abuse
its discretion when it allowed the State to present evidence about Barnett’s home
in Logan County. The first assignment of error is thus overruled.
Second Assignment of Error—
Ineffective Assistance of Trial Counsel
{¶19} In this pro se assignment of error Barnett complains about attorney
Siesel’s representation at trial, alleging that he provided ineffective assistance of
counsel. In order to prevail on a claim of ineffective assistance of counsel, a
criminal defendant must first show that the counsel’s performance was deficient in
that it fell “below an objective standard of reasonable representation.” State v.
Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47 (1997). Second, the defendant must
show “that the deficient performance prejudiced the defense so as to deprive the
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defendant of a fair trial.” Id., citing Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to demonstrate prejudice, the
defendant must prove a reasonable probability that the result of the trial would
have been different but for his or her counsel’s errors. Id. In applying these
standards, the court must “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” State v.
Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 108, quoting
Strickland at 669. Therefore, the court must be highly deferential in its scrutiny of
counsel’s performance. State v. Walker, 90 Ohio App.3d 352, 359, 629 N.E.2d
471 (3d Dist.1993), quoting Strickland at 689.
{¶20} Barnett’s complaints include several instances of the alleged failure
to impeach State’s witnesses for prior inconsistent statements (see Supplemental
Br. at 2), failure to call additional alibi witnesses (see id. at 3-4), and failure to
prevent playing of the recorded police interview in which Barnett allegedly made
incriminating statements (see id. at 5). We first note that Barnett failed to support
his allegations in this assignment of error with references to “the place in the
record where each error is reflected,” as required by App.R. 16(A)(3). The
Supplemental Brief filed by Barnett includes some attachments, which appear to
be excerpts from a transcript or transcripts. These pages are not certified or
authenticated and we are unable to determine what they represent. Furthermore,
they do not appear to be a part of the trial record and no application to supplement
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the record has been made. Therefore, we cannot consider these attachments in
resolving the issues on appeal. See State v. Zhovner, 2013-Ohio-749, 987 N.E.2d
333, ¶ 11 (3d Dist.) (“Evidence not made part of the record that is attached to an
appellate brief cannot be considered by a reviewing court.”); State v. Grant, 10th
Dist. Franklin Nos. 12AP–650, 12AP–651, 2013-Ohio-2981, ¶ 12 (July 9, 2013)
(“An exhibit merely appended to an appellate brief is not part of the record, and
we may not consider it in determining the appeal.”).
{¶21} We proceed to review Barnett’s claim of ineffective assistance of
counsel based on the record properly before us. The burden is on the defendant to
establish a claim of ineffective assistance of counsel and Barnett fails to satisfy
this burden so as to rebut the strong presumption that his trial counsel’s
performance fell within the wide range of reasonable professional assistance. See
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State
v. Robinson, 108 Ohio App.3d 428, 431, 670 N.E.2d 1077 (3d Dist.1996).
{¶22} There is no support in the record for Barnett’s claims that the State’s
witnesses made prior inconsistent statements. Therefore, we cannot find that
attorney Siesel’s performance fell below an objective standard of reasonable
representation for failure to impeach those witnesses. While Barnett claims that
his trial counsel failed to call two defense witnesses who would have provided an
alibi, the trial transcript shows the following colloquy with the trial court:
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THE COURT: Mr. Barnett, your attorney has talked to
you about your option and your right to testify or right to remain
silent.
ROBBY BARNETT: Yes, sir.
THE COURT: And he has indicated you’re not going to
be calling any additional witnesses, including yourself; is that
correct?
ROBBY BARNETT: That’s correct.
THE COURT: And that is your free and voluntary
decision?
ROBBY BARNETT: That’s correct.
(Tr. at 1051-1052.) The record indicates that it was Barnett’s decision not to call
additional witnesses.
{¶23} We find no merit in an allegation that due to the counsel’s
ineffectiveness, the jury was allowed to hear incriminating evidence from the
recorded police interview that prejudiced Barnett so as to deprive him of a fair
trial. While part of a recorded police interview was admitted in the record, it did
not include any prejudicial incriminating statements. The record discloses that
Mr. Siesel did object to playing the recorded interview in front of the jury (Tr. at
875-879, 885-886), and that the only part of the interview that was played
included Barnett’s statements regarding not being in Aldrich’s trailer at or around
the time of the fire.
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{¶24} Furthermore, we do not find the second element of the Strickland test
for ineffective assistance of counsel to be satisfied, where Barnett’s brief merely
speculates that the jury “may have discarded” [sic] the witnesses’ testimony “and
either acquitted defendant or entered a lesser included offense.” (Supplemental
Br. at 3; see also id. at 5.) The standard for prevailing on the claim of ineffective
assistance of counsel is “a reasonable probability,” not a mere speculation, that the
result of the trial would have been different.
{¶25} Accordingly, Barnett has failed to sustain his burden of showing
deficiency in the trial counsel’s performance and a reasonable probability that the
result of the trial would have been different. Therefore, we reject Barnett’s
assertion that his trial counsel was ineffective and we overrule the second
assignment of error.
E. Conclusion
{¶26} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Common Pleas Court in Auglaize County, Ohio is
therefore affirmed.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/jlr
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