State v. Finfrock ( 2018 )

[Cite as State v. Finfrock, 2018-Ohio-5057.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-18-42
v.
JOSEPH W. FINFROCK, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-18-43
v.
JOSEPH W. FINFROCK, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-18-44
v.
JOSEPH W. FINFROCK, OPINION
DEFENDANT-APPELLANT.
Case Nos. 1-18-42, 1-18-43 and 1-18-44
Appeals from Lima Municipal Court
Trial Court Nos. 18CRB0799, 18CRB0917 and 18CRB01815
Judgments Affirmed
Date of Decision: December 17, 2018
APPEARANCES:
Reed D. Searcy for Appellant
Anthony M. DiPietro for Appellee
SHAW, J.
{¶1} Defendant-appellant, Joseph W. Finfrock (“Finfrock”), brings these
appeals from the July 26, 2018, judgments of the Lima Municipal Court sentencing
Finfrock to an aggregate jail term of 18 months after Finfrock was convicted of three
separate counts of Theft in violation of R.C. 2913.02(A)(1), all first degree
misdemeanors, and one count of Criminal Trespass in violation of R.C.
2911.21(A)(1), a fourth degree misdemeanor. On appeal, Finfrock argues that the
trial court erred by failing to sua sponte conduct a competency hearing, that trial
counsel was ineffective for failing to raise issues related to Finfrock’s competence,
that trial counsel was ineffective for failing to object to certain testimony, that there
was insufficient evidence presented to convict Finfrock of Theft in trial court case
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number 18CRB01815, and that his Theft convictions in trial court case numbers
18CRB00799 and 18CRB01815 were against the manifest weight of the evidence.
Relevant Facts and Procedural History
{¶2} There were three separate incidents leading to the charges in this case.
The first occurred on March 22, 2018, when Finfrock was at Walmart on Harding
Highway in Lima Ohio. An asset protection associate observed Finfrock taking a
boxed television off of a shelf in the electronics department and removing the wired
“spider wrap,” which would sound an alarm if broken. After sliding the spider wrap
off of the television box, Finfrock walked up an aisle, found an unused cart, and put
the television into it. Then, Finfrock went to the front of the store, got a Pepsi, and
paid for the Pepsi at a self-checkout. Next, he tried to leave the store.
{¶3} Finfrock was stopped by a Walmart greeter, and the asset protection
associate approached Finfrock. Finfrock said that he had actually bought the
television in the back of the store, but did not have a receipt. The asset protection
associate indicated he had been watching Finfrock, and knew that was not true.
When the asset protection associate asked Finfrock to come to his office, Finfrock
left the store. The asset protection associate followed Finfrock outside and called
the police, who apprehended Finfrock nearby. Finfrock was brought back to
Walmart for identification. This incident led to the first charge of Theft in violation
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of R.C. 2913.02(A)(1), a first degree misdemeanor, which was filed in Lima
Municipal Court March 26, 2018. It was assigned trial court case 18CRB00799.1
{¶4} Thereafter, Finfrock was given a “Notification of Restriction from
Property,” banning him from being in any Walmart. On May 11, 2018, the same
asset protection associate that had dealt with Finfrock at Walmart on the March 22,
2018, Theft allegation was notified that Finfrock was on the property. The asset
protection associate attempted to find Finfrock in the store, but was unable.
{¶5} Afterward, the asset protection associate reviewed the closed-circuit
security footage and observed Finfrock taking a plastic bag from a closed turnstile
in the checkout area, then walking over to take at least four “submarine” sandwiches
from the deli area. Finfrock left the store without paying for the sandwiches, which
were valued at approximately $20.60. As a result of this incident Finfrock was
charged with Theft in violation of R.C. 2913.02(A)(1), a first degree misdemeanor,
and Criminal Trespassing in violation of R.C. 2911.21(A)(1), a fourth degree
misdemeanor. This incident was assigned to trial court case number 18CRB01815.2
{¶6} Finally, Finfrock was charged with Theft in violation of R.C.
2913.02(A)(1) after an incident on June 29, 2018, wherein Finfrock was observed
by a loss prevention specialist at Menards taking drill batteries and a pop out of the
store without paying for them. As a result of the incident Finfrock was charged with
1
The appeal of this trial court case number was assigned to appellate case number 1-18-42.
2
The appeal of this trial court case number was assigned appellate case number 1-18-44.
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Theft in violation of R.C. 2913.02(A)(1), a first degree misdemeanor. The Theft
related to Menards was assigned to trial court case 18CRB01917.3
{¶7} Finfrock pled not guilty to all the charges, and he proceeded to trial in
each case. The trial on the first television Theft from Walmart was held June 11,
2018. The trial on the second Walmart Theft of the sandwiches and the
accompanying Criminal Trespass was held on July 23, 2018. That same date the
trial on the Menards theft was held. The asset protection associate from Walmart
testified in both Walmart cases and the loss prevention specialist from Menards
testified in the Menards theft case. Finfrock testified on his own behalf in all of the
cases. He denied taking the television in the first Walmart theft, and denied taking
any subs during the second Walmart theft, though he admitted to being at the
Walmart as he claimed he had an account with a bank inside. Finfrock admitted to
the Menards theft. Finfrock was found guilty of all three Theft charges and the
Criminal Trespassing charge.
{¶8} On July 25, 2018, Finfrock’s case proceeded to sentencing. It was noted
that Finfrock had a very extensive criminal history dating back to 1974, including
10 prior Theft offenses and 4 Theft-related offenses, in addition to various other
criminal convictions in Ohio, Florida, and Indiana. Finfrock spent time in prison in
Florida, Indiana, and Ohio. After reviewing Finfrock’s criminal history, the trial
3
The appeal of this trial court case number was assigned appellate case number 1-18-43.
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court sentenced Finfrock to serve 6 months in jail on each Theft conviction,
consecutive to each other, for an aggregate 18-month jail term. Finfrock was given
30 days in jail on the Criminal Trespassing charge, to be served concurrently with
the second Theft from Walmart.
{¶9} Judgment Entries memorializing Finfrock’s sentences were filed July
26, 2018. It is from these judgments that Finfrock appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1
The trial court erred in failing to conduct a hearing on appellant’s
competence to stand trial.
Assignment of Error No. 2
Appellant’s trial counsel was ineffective in failing to raise or
explore issues related to appellant’s competence and sanity and in
failing to object to inadmissible evidence.
Assignment of Error No. 3
The trial court erred in finding appellant guilty as there was not
a sufficient amount of evidence for the trial court to find that the
State had established all the elements of R.C. § 29[13.02](A)(1)
beyond a reasonable doubt in Case No. 18CRB01815.
Assignment of Error No. 4
The trial court’s decision finding appellant guilty was against the
manifest weight of the evidence.
First Assignment of Error
{¶10} In Finfrock’s first assignment of error, he argues that the trial court
erred in failing to sua sponte conduct a hearing on Finfrock’s competence to stand
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trial. Finfrock argues that although he never requested a competency hearing, the
trial court should have recognized the necessity of the matter.
Relevant Authority
{¶11} The Ohio Revised Code is clear that “A defendant is presumed to be
competent to stand trial.” R.C. 2945.37(G). Moreover, the Ohio Revised Code also
states that a court shall not find a defendant incompetent to stand trial, “solely
because the defendant is receiving or has received treatment as a voluntary or
involuntary mentally ill patient * * * or because the defendant is receiving or has
received psychotropic drugs or other medication, even if the defendant might
become incompetent to stand trial without the drugs or medication.” R.C.
2945.37(F).
Argument and Analysis
{¶12} At the outset, we emphasize that neither Finfrock nor his trial counsel
ever requested a competency hearing before his trials. Prior to the inception of
Finfrock’s first trial, Finfrock indicated he was not prepared to proceed to trial
because he had not received or reviewed discovery. His appointed counsel indicated
that discovery had been received and reviewed, and witnesses had been interviewed.
Finfrock made no representations at that time regarding his competence.
{¶13} Nevertheless, Finfrock argues on appeal that there were seven issues
that should have led to the trial court sua sponte ordering a competency hearing.
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(1) On the first trial date, Mr. Finfrock had not reviewed his
discovery materials, and unequivocally stated he was not
ready for trial. * * *
(2) Mr. Finfrock referenced his mental health issues during both
trials on multiple occasions, stated that he took mental health
medication, and that he was seeing a mental health therapist.
***
(3) Mr. Finfrock claimed, on multiple occasions, that he had
pled not guilty by reason of insanity. * * *
(4) Mr. Finfrock claimed that things slipped his mind easily
because of a car accident he was in as a child. * * *
(5) Mr. Finfrock, at one point, took a pen from counsel table and
placed it in his sock. * * *
(6) Mr. Finfrock did not seem to remember that he had been to
an arraignment for Case No. 18 CRB 01815, that he had
received a Complaint, or the initial plea he had entered at
arraignment in that case. * * *
(7) Mr. Finfrock admitted on the stand that he was guilty in
Case No. 18 CRB 01917 after demanding to go to trial on the
same case. * * *
(Appt.’s Br. at 4-5).
{¶14} After reviewing Finfrock’s arguments on appeal, we can dismiss
several of them immediately as being inconsequential. First, Finfrock’s argument
that he was not prepared to go to trial was contradicted by his attorney, and it had
no bearing on competence. Second, his claim that he took a pen from counsel table
and placed it in his sock similarly may show bad judgment but it does not have any
bearing on his competence. Third, his admission on the witness stand that he was
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guilty of one of the crimes against him also does not show any lack of competence.
In fact, it shows the opposite, indicating that he remembered the event and was able
to take responsibility for his actions.
{¶15} Moreover, as to his other claims, there is no indication in any of the
trial court dockets that Finfrock ever pled not guilty by reason of insanity in any of
these cases, and while Finfrock claimed during his second trial that he did not
remember having been arraigned on the case, the file itself indicates that he was
present for arraignment and served with the complaint. Finfrock seems to claim that
because he apparently “forgot” these things and because he argued at trial that things
slipped his mind easily due to a childhood car accident, he was not competent to
stand trial.
{¶16} However, there is no indication of a lack of competence in the record.
Finfrock participated in his defense and took the stand during the trials, testifying
specifically to remembering some of the events, but then conveniently forgetting
the criminal acts. He also claimed initially that he had simply forgotten to pay for
the Walmart television.
{¶17} Notably, after the trials, a pre-sentence investigation was conducted,
wherein it was indicated that Finfrock had been found competent to stand trial when
he challenged the issue in a 2014 case. While it is true that in theory Finfrock’s
mental state could have deteriorated, there is simply no indication in these cases that
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the trial court erred by failing to sua sponte conduct a competency hearing. On the
basis of the record before us we cannot find that the trial court erred, particularly
when a defendant is presumed to be competent under the Ohio Revised Code.
Therefore, Finfrock’s first assignment of error is overruled.
Second Assignment of Error
{¶18} In Finfrock’s second assignment of error, he argues that he received
ineffective assistance of trial counsel. Specifically he contends that his trial counsel
was ineffective for failing to request a competency hearing and that his trial counsel
was ineffective for failing to object to the asset protection associate’s testimony
during the second Walmart trial.
Standard of Review
{¶19} “To establish a claim for ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4–16–
27, 28, 2017–Ohio–2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1–15–43,
2016–Ohio–3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–
5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure
to make either showing defeats a claim of ineffective assistance of counsel. State v.
Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no
reason for a court deciding an ineffective assistance of counsel claim to approach
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the inquiry in the same order or even to address both components of the inquiry if
the defendant makes an insufficient showing on one.”).
{¶20} We note that a tactical decision by trial counsel, who as a licensed
attorney is presumed to be competent, is not by itself enough to show ineffective
assistance of counsel simply because the strategy did not result in an acquittal. State
v. Clatyon, 62 Ohio St.2d 45, 48-49 (1980); State v. Timm, 3d Dist. Seneca No. 13-
11-23, 2012-Ohio-410, ¶ 31. “Furthermore, trial counsel’s failure to object is
generally viewed as trial strategy and does not establish ineffective assistance.”
State v. Turks, 3d. Dist. Allen No. 1–08–44, 2009–Ohio–1837, ¶ 43, citing State v.
McKinney, 11th Dist. Trumbull No.2007–T–0004, 2008–Ohio–3256, ¶ 191; State
v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, ¶ 103.
Argument and Analysis
{¶21} Finfrock first argues that his trial counsel was ineffective for failing to
raise the issue of his competency as argued in the first assignment of error.
However, as Finfrock is presumed to be competent to stand trial and we have no
indication that he would be found incompetent, we cannot find any prejudice here.
This is especially true given Finfrock’s participation in the trial and his evidently
clear memory of some of the events. Thus this argument is not well-taken.
{¶22} Finfrock next argues that his trial counsel was ineffective for failing
to object to the testimony of Walmart’s asset protection associate during his second
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trial. More specifically, Finfrock contends that the surveillance video of his
purported Theft of the sandwiches was not played to the trial court, and was not
entered into evidence. He argues that the asset protection associate did not even
view the surveillance video contemporaneously with the purported theft; rather, the
associate reviewed the video after he could not find Finfrock in the store, only then
learning of the potential theft. Finfrock contends that the associate’s testimony is a
violation of the Best Evidence Rule in Evid.R. 1002. He argues that he may have
received an acquittal if his trial counsel objected to the testimony and the State did
not produce video of the incident.
{¶23} Contrary to Finfrock’s argument, we cannot find ineffective assistance
of counsel on this issue. Defense counsel could have thought that the testimony
itself was less damning and more questionable than if the State introduced the video
itself. Defense counsel may not have objected because the video may have made
the matter a foregone conclusion. In addition, defense counsel may have forgone
an objection on the subject for expedience, knowing that the tape could have been
admitted.
{¶24} In fact, since the video was not introduced into evidence, Finfrock was
able to testify that he had never actually taken any sandwiches from Walmart,
though he was present at Walmart on the day in question. Video might have
destroyed any chance he had at an acquittal based on his own testimony. For these
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reasons we can find no ineffective assistance of counsel here. Therefore, Finfrock’s
second assignment of error is overruled.
Third Assignment of Error
{¶25} In Finfrock’s third assignment of error he argues that there was
insufficient evidence presented to convict him of the Walmart theft of sandwiches
in trial court case 18CRB01815.
Standard of Review
{¶26} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is
a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency
challenge, “ ‘the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’ ” State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
{¶27} On appeal, Finfrock challenges his conviction for Theft in violation of
R.C. 2913.02(A)(1), which reads, “No person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over * * * the property
* * * Without the consent of the owner or person authorized to give consent[.]”
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Argument and Analysis
{¶28} In arguing that there was insufficient evidence presented to support his
Theft conviction in trial court case 18CRB01815 regarding the Walmart deli
sandwiches, Finfrock contends that the asset protection associate did not give a first-
hand account of the incident, but rather merely testified regarding his observations
from the security system.
{¶29} The asset protection associate did clearly testify that he observed
Finfrock on the closed-circuit security footage. He testified that Finfrock took a bag
from a turnstile, and that Finfrock went to the deli area and placed at least four
submarine sandwiches into the bags, then left the store without paying. The
associate testified that Finfrock even tried to leave from one area of the store, but
after being stopped by a greeter, he chose to leave from another area of the store.
{¶30} This testimony, if believed, would be sufficient to meet the elements
of Theft as charged. However, Finfrock argues that the evidence was hearsay, and
in violation of the best evidence rule since the State did not introduce the video into
evidence. While it may have been hearsay, we already addressed why Finfrock’s
counsel may have elected not to object to the asset protection associate’s testimony.
Thus with the testimony that was actually before the trial court, we cannot find that
there was insufficient evidence presented to convict Finfrock in trial court case
18CRB01815. Therefore his third assignment of error is overruled.
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Fourth Assignment of Error
{¶31} In Finfrock’s fourth assignment of error, he argues that his convictions
for Theft from the two Walmart incidents were against the manifest weight of the
evidence.
Standard of Review
{¶32} Unlike our review of sufficiency of the evidence, in reviewing whether
a verdict was against the manifest weight of the evidence, the appellate court sits as
a “thirteenth juror” and examines the conflicting testimony. Thompkins at 387. In
doing so, this Court must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses and determine whether
in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Id.Argument and Analysis
{¶33} With regard to the Theft of submarine sandwiches from Walmart in
trial court case 18CRB01815, we have already determined that sufficient evidence
was presented to convict Finfrock. He merely maintains that there was no
“admissible” evidence presented to convict him.
{¶34} Contrary to Finfrock’s argument, the asset protection associate’s
testimony was before the trial court. In addition, Finfrock testified on his own
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behalf, denying that he had taken the sandwiches. Interestingly, Finfrock did admit
that he had been in the Walmart that day, indicating that he had gone in to use a
bank inside where he claimed to have an account. Finfrock also testified that he
walked around the store some. However he denied taking any sandwiches. The
trial court was free to find his version not to be credible as the trier-of-fact. State v.
DeHass, 10 Ohio St.2d 230, 231 (1967). On the basis of the admitted evidence, we
cannot find that Finfrock’s conviction was against the manifest weight of the
evidence.
{¶35} As to Finfrock’s Theft conviction for the Walmart television, the asset
protection associate testified that he watched Finfrock remove the “spider wrap”
security wiring on the television box, then walk over and put it in an empty cart.
The associate testified that Finfrock took the cart and went and purchased a Pepsi at
the self-checkout kiosks, but he did not attempt to pay for the television. Finfrock
then attempted to leave the store, passing the last point-of-sale but was stopped by
a greeter who asked for a receipt. The asset protection associate also approached
Finfrock at that time.
{¶36} Finfrock initially stated that he had paid for the television at the back
of the store but did not have the receipt. When the asset protection associate
indicated that he had been following Finfrock through the store and knew that
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Finfrock had not paid for the television, the asset protection associate testified that
Finfrock admitted that he had taken the television.
{¶37} The asset protection associate testified that he then wanted Finfrock to
come with him to his office, but Finfrock said he was not going to have anything to
do with that and walked out the door. The associate testified that he followed
Finfrock outside and called the police.
{¶38} Deputy Barry Friemoth testified that he responded to the call and
located Finfrock near the old Kmart, then took him back to the Walmart for
identification. The associate identified Finfrock as the culprit.
{¶39} At trial, Finfrock testified on his own behalf that he remembered the
date in question, that he had money in his wallet, and that there was no “spider wrap”
on the television that he removed. He testified that his mind slipped at times because
of a car wreck he was in as a child. He testified that he thought he paid for the
television in the back, and that he had money to pay for the television. At the
conclusion of the testimony the trial court found Finfrock guilty of the Theft as
charged.
{¶40} On appeal, we cannot find that Finfrock’s conviction for the March
22, 2018, Theft was against the manifest weight of the evidence. The testimony of
the asset protection associate was clear and unequivocal. Finfrock even
corroborated some of the associate’s testimony. Again, the trial court was free to
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disbelieve Finfrock’s claimed lack of memory as the trier-of-fact. This seems
particularly true given that Finfrock remembered to purchase a Pepsi at the checkout
line but not the television in the cart he was pushing. For these reasons Finfrock’s
fourth assignment of error is overruled.
Conclusion
{¶41} For the foregoing reasons Finfrock’s assignments of error are
overruled and the judgments of the Lima Municipal Court are affirmed.
Judgments Affirmed
ZIMMERMAN and PRESTON, J.J., concur.
/jlr
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