State v. McAllister ( 2016 )

[Cite as State v. McAllister, 2016-Ohio-8262.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2016CA00110
JOHN L. MCALLISTER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court,
Case No. 2016CR00507
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 19, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAITLYN R. SCHNEIDER DEREK LOWRY
JENNIFER ARNOLD Crawford, Lowry & Assoc.
MATTHEW KUHN 116 Cleveland Avenue NW
Law Director's Office Suite 800
470 East Market Street Canton, Ohio 44702-1732
Alliance, Ohio 44601
Stark County, Case No. 2016CA00110 2
Hoffman, P.J.
{¶1} Defendant-appellant John Lawrence McAllister appeals his convictions
entered by the Alliance Municipal Court on one count of theft by deception, in violation of
R.C. 2913.02(A)(3); and one count of possessing criminal tools, in violation of R.C.
2923.24(A). Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 4, 2016, Hailey Miku, an infant child, was found dead in her home.
Appellant is the estranged grandfather of Hailey Miku. On March 10, 2016, the child was
laid to rest at Forest Hills Cemetery. The funeral expenses and burial were paid for in full
through private donations. Appellant and his co-defendant, Lisa Dalesandro, collected
money donations in homemade tins for the alleged purpose of paying the funeral
expenses for Hailey Miku. Appellant is the estranged grandfather of the infant child.
{¶3} On March 25, 2016, Tamara Mackey, the aunt of Hailey Miku, learned of
Dalesandro’s actions via social media. Mackey had personal knowledge the funeral
expenses and burial site for Hailey Miku had been paid in full through a private donation
and a separate Go Fund Me account.
{¶4} On March 25, 2016, Mackey confronted Appellant and Dalesandro,
identifying them by name. She then followed them to the parking lot of a Marc’s store,
where she observed Dalesandro soliciting donations for the funeral expenses of Hailey
Miku.
Stark County, Case No. 2016CA00110 3
{¶5} Tamara Mackey made contact with Officer Bartolet of the Alliance Police
Department to report Dalesandro’s conduct.1 Officer Bartolet proceeded to the Marc’s
store and observed Lisa Dalesandro holding coffee cans with the deceased child’s name,
asking for money for a headstone for the child. Officer Bartolet had been advised the
headstone and funeral expenses had been paid in full per his conversation with Tamara
Mackey. He then approached Dalesandro.
{¶6} Upon approach, Dalesandro informed Officer Bartolet she was working with
Appellant, her boyfriend, to solicit the funds. Bartolet testified he gathered information
Appellant was in a car in the parking lot, but he had departed.
{¶7} Officer Bartolet learned through his investigation Appellant and Dalesandro
solicited funds in person and through leaving cans at Munchy’s Bar and Drive-Thru.
{¶8} Kelly Andrews of Munchy’s Bar and Drive-Thru testified Dalesandro left two
homemade tins at Munchy’s for the purpose of soliciting funds for the funeral expenses
of Hailey Miku. On March 25, 2016, Appellant returned to collect the donated monies and
left the emptied cans at the bar for additional donations. Appellant also left his phone
number at the business in the event someone wanted to make a larger donation.
{¶9} Prior to leaving Munchy’s, Appellant solicited funds in person at the drive-
thru, approaching customers and telling them about his granddaughter and collecting
monies for the funeral/headstone.
{¶10} On March 26, 2016, Appellant returned to Munchy’s Bar and Drive-Thru to
retrieve the funds. Andrews confronted Appellant about the investigation, and informed
1Tamara Mackey’s police report taken on March 25, 2016, did not mention Appellant or
his conduct.
Stark County, Case No. 2016CA00110 4
Appellant he would need to collect the cans at the Alliance Police Department. Appellant
proceeded to leave the bar.
{¶11} Appellant was charged with one count of theft, by deception, in violation of
R.C. 2913.02(A)(3); and one count of possessing criminal tools, in violation of R.C.
2923.24(A).
{¶12} The matter proceeded to jury trial on May 5, 2016. Following the jury’s return
of a guilty verdict on both counts, the trial court conducted a sentencing hearing and
imposed a term of one hundred forty days in jail on the theft by deception count, and one
hundred eighty days on the possession of criminal tools count. The trial court ordered the
terms run consecutively.
{¶13} Appellant appeals, assigning as error:
{¶14} “I. THE TRIAL COURT ERRED BY IMPROPERLY ADMITTING HEARSAY
TESTIMONY.
{¶15} “II. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
{¶16} “III. THE TRIAL COURT’S [sic] FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶17} “IV. THE TRIAL COURT IMPROPERLY CONSIDERED APPELLANT’S
PRE-ARREST SILENCE IN SUPPORT OF MAXIMUM AND CONSECUTIVE
SENTENCES.”
II.
Stark County, Case No. 2016CA00110 5
{¶18} We find it best to address Appellant’s second assignment of error first, as
our analysis and disposition of Appellant’s argument therein has bearing on the first
assigned error.
{¶19} In the second assignment of error, Appellant asserts he was denied the
effective assistance of counsel at trial. Specifically, Appellant cites counsel’s failure to
object to alleged hearsay testimony, the failure to object to opinion evidence, and trial
counsel’s failure to pursue a motion in limine to exclude any testimony regarding
Appellant’s pending case in the Canton Municipal Court.
{¶20} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158 (1955).
{¶21} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶22} Even if a defendant shows counsel was incompetent, the defendant must
then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong,
the defendant must show that “there is a reasonable probability that, but for counsel's
Stark County, Case No. 2016CA00110 6
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. The weight of the evidence and determination of the credibility of the
witnesses lie with the trier of fact.
{¶23} Initially, Appellant maintains his counsel was ineffective in failing to pursue
a motion in limine to exclude testimony relative to Appellant’s pending case in the Canton
Municipal Court. At trial, Officer Cook testified, during his investigation of the allegations,
he called Officer Bartolet as he had knowledge Officer Bartolet was investigating a similar
incident involving Dalesandro, wherein “they were in the Canton area trying to obtain
donations in the same way that [Officer Cook was] investigating.” Tr. at 124.
{¶24} On cross-examination by Appellant’s counsel, Tamara Mackey testified as
to Dalesandro and Appellant “getting in trouble in Canton doing the same thing” as alleged
herein. Tr. at 162. Appellant’s counsel then inquired of Mackey whether she was assisting
the police in the Canton investigation, to which she stated she was not involved in the
investigation. Id. Mackey testified she had knowledge of the investigation. Counsel then
inquired whether the Canton allegations had been resolved, to which Mackey replied
there had been no resolution. Id.{¶25} The testimony concerning the Canton Municipal Court case established
there had not yet been a resolution of the allegations. Appellant’s guilt had not been
established. Tr. at 162. 2 Though the testimony may well have been prejudicial, we find it
does not rise to the level of creating a reasonable probability the outcome of the trial
would have been different had the testimony been excluded.
2While not specifically so instructed regarding the pending charge in Canton Municipal Court, the jurors
were instructed regarding the presumption of innocence in this case and would likely understand such
presumption of innocence would apply to the Canton Municipal Court case.
Stark County, Case No. 2016CA00110 7
{¶26} Appellant also argues his trial counsel was ineffective in failing to object to
hearsay testimony. First, Appellant cites the unauthenticated letter from the funeral home
testified to by Tamara Mackey. Mackey testified at trial she had personal knowledge the
funeral expenses were paid for and no remaining balance was due. The State introduced
Exhibit E, a letter from Forest Hill Cemetery to Justina Longwell stating, “In regard to baby
Hailey Miku’s mausoleum entombment at Forest Hill cemetery, there are currently no
charges due, the goods and services were donated.” Appellant asserts the letter was
hearsay.
{¶27} While we agree the letter was hearsay, we note the letter was cumulative
to the testimony of Mackey herself. As such, we cannot find a reasonable probability
exists the outcome of the trial would have been different had Appellant’s counsel objected
to the introduction of the letter and the letter been excluded.3
{¶28} Appellant next cites the testimony of Officer Bartolet regarding a statement
made by Lisa Dalesandro that Appellant was in the car at the Marc’s store on the date of
the incident. Appellant asserts such was inadmissible hearsay testimony. Officer Bartolet
testified at trial, he learned through his investigation, through Dalesandro and Mackey,
Appellant had driven Dalesandro to the Marc’s parking lot, but after the arrest of
Dalesandro, the car and Appellant could not be located.
{¶29} Tamera Mackey testified prior to making contact with Dalesandro in the
Marc’s parking lot, she approached the car and identified Appellant and Lisa Dalesandro
by name as the occupants of the vehicle. She testified she followed Appellant and
Dalesandro into the parking lot, personally observing and videotaping Dalesandro
3 Furthermore, had an objection been made and sustained, the State may have been able to introduce
the evidence later through the testimony of a representative from the funeral home.
Stark County, Case No. 2016CA00110 8
soliciting funds for the funeral expenses of Hailey Miku. Appellant was not present in the
parking lot, and she did not include his name in the police report as she was focused on
the activities of Dalesandro. Tr. at 158.
{¶30} Officer Cook of the Alliance Police Department testified he never confirmed
Appellant’s presence in the parking lot, nor did he confirm Appellant had left when the
police arrived. We find no reasonable probability exists the outcome of the trial would
have been different but for the admission of this hearsay testimony.
{¶31} Appellant next cites the testimony of Officer Cook regarding statements
made by Kelly Andrews, an employee of Munchy’s Bar and Drive Thru, concerning
Appellant bringing in the cans and soliciting funds at Munchy’s for the funeral expenses
of Hailey Miku.
{¶32} Kelly Andrew’s herself testified as to Appellant’s conduct in soliciting the
funds for the funeral expenses. She was subject to cross-examination. Because her
statement to Officer Cook was cumulative to her trial testimony, we again find Appellant
cannot meet the prejudice prong of Strickland.
{¶33} Appellant also cites Officer Cook’s testimony the actions of Appellant
constituted deceit. At trial, Appellant’s counsel inquired of Officer Cook,
Q. Okay. Um so with regard to your complaint, you filed the complaints
against Mr. McAllister, right?
A. Yes I did.
Q. Okay. And you alleged that he knowingly by deception collected
donations, right?
A. Yes.
Stark County, Case No. 2016CA00110 9
Q. Okay. Who did you talk to that he deceived?
A. Ms. Andrews was the person that made the complaint to me.
Q. Did Ms. An--, -- did he deceive Ms. Andrews?
A. You’ll have to ask her.
Q. During the investigation, you didn’t reveal that he deceived Ms. Andrews,
did you?
A. I believe Ms. Andrews did state to me that she did make donations prior
to knowing the circumstances with the cans.
Q. Did she say to you that Mr. McAllister spoke to her and deceived her?
A. No.
***
Q. Okay. You also state in your complaint for theft that he deceived—which
today you’re—you don’t’ have any evidence of that – “that the funeral
expenses were already taken care of and that the defendant was keeping
money for personal use,” right?
A. Yes.
Tr. at 127-128.
{¶34} On re-direct, the State inquired of Officer Cook whether he would consider
Appellant’s actions deceit based upon his experience. Officer Cook answered, yes. Tr. at
135.
{¶35} While the officer’s opinion as to the ultimate issue is properly left for the jury
to decide, we find Appellant’s counsel opened the door when he inquired of Officer Cook
whether the actions of Appellant amounted to deceit. Officer Cook deferred to the opinion
Stark County, Case No. 2016CA00110 10
of Kelly Andrews at that time. Tr. at 128-130. We find counsel’s cross-examination of
Officer Cook amounts to trial strategy. Further, Kelly Andrews testified she did donate
monies based upon Appellant’s statements to her and to other customers of Munchy’s
Bar and Drive-Thru. Even if the failure to object to Officer’s Cook’s testimony on redirect-
examination fell below the wide range of reasonable professional assistance, we do not
find a reasonable probability exists the outcome of the trial would have been different had
Officer Cook’s opinion regarding Appellant’s deceit been excluded.
{¶36} Appellant’s second assignment of error is overruled.
I.
{¶37} In the first assigned error, Appellant maintains the trial court erred in
permitting hearsay and opinion testimony at trial.
{¶38} Appellant did not object to the testimony at trial; therefore, we review
Appellant’s argument under a plain error analysis.
{¶39} In order to prevail under a plain error analysis, Appellant bears the burden
of demonstrating the outcome clearly would have been different but for the error. State v.
Long, 53 Ohio St.2d 91 (1978). Notice of plain error “is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id. at paragraph three of the syllabus.
{¶40} As set forth in our analysis and disposition of Appellant’s second
assignment of error, we do not find a reasonable probability exists the outcome of the trial
would have been different had the challenged testimony been excluded. Accordingly, we
do not find any of the alleged errors rises to the more stringent level of plain error.
{¶41} The first assignment of error is overruled.
Stark County, Case No. 2016CA00110 11
III.
{¶42} In the third assignment of error, Appellant maintains his convictions for theft
by deceit and use of criminal tools were against the manifest weight and sufficiency of the
evidence. We disagree.
{¶43} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘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–Ohio–52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶44} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶45} Appellant was convicted of theft by deception, in violation of R.C.
2913.02(A)(3), which reads, in pertinent part,
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or
services in any of the following ways:
***
(3) By deception;
Stark County, Case No. 2016CA00110 12
{¶46} Appellant was further convicted of possession of criminal tools, in violation
of R.C. 2923.24(A), which reads, in pertinent part,
(A) No person shall possess or have under the person's control any
substance, device, instrument, or article, with purpose to use it criminally.
(B) Each of the following constitutes prima-facie evidence of criminal
purpose:
(1) Possession or control of any dangerous ordnance, or the
materials or parts for making dangerous ordnance, in the absence of
circumstances indicating the dangerous ordnance, materials, or parts are
intended for legitimate use;
(2) Possession or control of any substance, device, instrument, or
article designed or specially adapted for criminal use;
(3) Possession or control of any substance, device, instrument, or
article commonly used for criminal purposes, under circumstances
indicating the item is intended for criminal use.
{¶47} As set forth in our analysis and disposition of Appellant’s first and second
assigned errors, testimony at trial established Tamara Mackey testified the funeral
expenses had been paid in full through a private donation and a separate Go Fund Me
account. The State introduced a letter [Exhibit E] to Justina Longwell stating the
mausoleum entombment at Forest Hill Cemetery was paid in full, and no charges were
due as the goods and services were donated.
Stark County, Case No. 2016CA00110 13
{¶48} Dalesandro indicated to police Appellant’s involvement in driving her to the
parking lot. Further, Tamera Mackey testified at trial she observed Appellant and
Dalesandro drive to Marc’s, and subsequently observed Dalesandro soliciting funds for
the funeral expenses and headstone for Hailey Miku.
{¶49} Kelly Andrews testified at trial Appellant visited Munchy’s Bar and Drive-
Thru on March 25, 2016. At the time, Appellant collected monies donated for the funeral
expenses and headstone of Hailey Miku, which donations were given in cans left at
Munchy’s by Lisa Dalesandro. While at Munchy’s, she observed Appellant soliciting funds
in person from patrons visiting the drive-thru, stating the monies were being collected for
the funeral expenses and headstone of his granddaughter. Appellant used the cans to
collect the donations, and then left the emptied cans for further donations. Appellant left
his name and phone number at the business in the event of larger donations.
{¶50} We find Appellant’s convictions for theft by deceit and possession of
criminal tools were not against the manifest weight nor based on insufficient evidence.
{¶51} The third assignment of error is overruled.
IV.
{¶52} In his fourth assigned error, Appellant maintains the trial court erred in
imposing maximum, consecutive sentences at the May 5, 2016 sentencing.
{¶53} The trial court sentenced Appellant herein to 144 days on the theft by
deception charge, and 180 days on the use of criminal tools charge, to run consecutively.
{¶54} The trial court stated on the record,
Stark County, Case No. 2016CA00110 14
THE COURT: You can be seated. The difficulty the Court has with
accepting that explanation, Mr. McAllister, is that the evidence before the
Court includes two separate instances where police on one occasion at
Marc’s parking lot were on the scene arriving and it’s alleged that you were
identified and you left instead of dealing with the police. The second
incident is the one at Munchy’s whereupon the notified by the bartender that
if you wanted the cans back you have to call the police. You left in a state
of agitation. Those two facts belie your statement that what you were doing
was for an honest and truthful purpose. In each of those cases, had your
interest, had your goals been absolutely forward and honest, you simply
would have said, “this is my intent and purpose” to anybody who
approached Ms. Dalesandro or who approached you at the time. Even after
knowing that Ms. Dalesando [sic] had been arrested, you then went to
Munchy’s to secure the funds from those cans, continued to address or seek
or solicit additional monies and never once wanted to say, “Hey, look, if
there is a problem, I know Lisa got arrested. I’ll run right down to the police
department and make this right.” At no point in time have I heard you
explain to the Court in your elocution, “Judge, I set up a fund in her name.
it’s at the local bank. Here’s where the money is. I’m prepared to turn this
over to the family for inscription.” At no point in time has the Court heard
anything like that. I find, in fact, that with you, it’s just a matter of, I’ll say
whatever is necessary to get me out of trouble.
***
Stark County, Case No. 2016CA00110 15
THE COURT: Sentence of the Court on the charge of theft. Two
hundred and fifty dollars plus court costs. One hundred and eighty days in
jail. I will impose one hundred and forty-four days upon you giving credit for
thirty-six you’ve already served. With regard to the charge of possession of
criminal tools. Two hundred fifty dollars plus court costs. One hundred and
eighty days in jail. I will impose all one hundred and eighty days. That will
be served consecutive to the charge of theft. I find the defendant’s record,
I find the defendant’s lack of remorse, I find the nature of the actions
complained about in the complaint proven by this Court absolutely justifies
this. This Court has had the opportunity to watch you as you present
yourself. Your demeanor, the way you appear, the way you address the
Court, the way you speak about this, your absolute complete lack of any
feeling in this regard requires the Court to impose this as consecutive
sentences. Mr. McAllister, I don’t think you care. I really don’t think you
care. And you present yourself as a guy that doesn’t care about this. As
long as you got some money out of it, that was good enough for you. And
that is the impression you’ve given this Court. The fact that you have not
ever once offered in any way, shape or form any support as to “if somebody
was hurt by my actions I will give them their money back. Here’s the
account where it was set up.” You’ve never, ever made that offer. You
never, ever made the offer to explain to the police department how this
really was just one big giant mistake. I find your actions absolutely
reprehensible. That will be the sentence of the Court. Consecutive
Stark County, Case No. 2016CA00110 16
sentences Madam Prosecutor, the Court concurs with your
recommendation.
Tr. at 209-210; 211-212.
{¶55} The trial court did not consider Appellant’s pre-arrest silence with respect to
the finding of guilt or innocence. We find it was not improper to consider the same for
purposes of sentencing. The trial court considered Appellant’s conduct throughout the
police investigation and during trial as a demonstration of lack of remorse. Appellant has
an extensive criminal record, including thirteen convictions for theft, as noted by the State
at sentencing. We find the trial court did not error in sentencing Appellant herein.
{¶56} The fourth assignment of error is overruled.
{¶57} Appellant’s convictions and sentence in the Alliance Municipal Court are
affirmed.
By: Hoffman, P.J.
Wise, J. and
Delaney, J. concur