State v. Small ( 2012 )


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  • [Cite as State v. Small, 
    2012-Ohio-149
    .]
    COURT OF APPEALS
    LICKING COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    :   JUDGES:
    STATE OF OHIO                                  :   W. Scott Gwin, P.J.
    :   John W. Wise, J.
    Plaintiff-Appellee   :   Julie A. Edwards, J.
    :
    -vs-                                           :   Case No. 10-CA-138
    :
    :
    DOUGLAS D. SMALL                               :   OPINION
    Defendant-Appellant
    CHARACTER OF PROCEEDING:                            Criminal Appeal from Licking County
    Court of Common Pleas Case No.
    10-CR-00246
    JUDGMENT:                                           Affirmed
    DATE OF JUDGMENT ENTRY:                             January 13, 2012
    APPEARANCES:
    For Plaintiff-Appellee                              For Defendant-Appellant
    KENNETH W. OSWALT                                   MATTHEW J. KINSMAN
    Licking County Prosecutor                           33 W. Main Street
    Licking County, Ohio                                P.O. Box 4190
    20 S. Second Street, Fourth Floor                   Newark, Ohio 43058-4190
    Newark, Ohio 43055
    DOUGLAS D. SMALL
    Inmate #A639-643
    Ross Correctional Institute
    P.O. Box 7010
    16149 St. Route 104
    Chillicothe, Ohio 45601
    [Cite as State v. Small, 
    2012-Ohio-149
    .]
    Edwards, J.
    {¶1}     Appellant, Douglas Small, appeals his conviction and sentence entered in
    the Licking County Court of Common Pleas. Appellant was convicted by a jury of one
    count of Robbery, a felony of the second degree, in violation of R.C. 2911.02(A)(2), one
    count of Intimidation of a Victim/Witness in a Criminal Case, a felony of the third degree,
    in violation of R.C. 2921.04(B), two counts of Assault, misdemeanors of the first degree,
    in violation of R.C. 2903.13(A)(1), and one count of Intimidation, a felony of the third
    degree, in violation of R.C. 2921.03(A).
    {¶2}     The trial court sentenced appellant to a term of three years on each of the
    felony counts ordered to be served consecutively to one another for a total prison term
    of nine years. The misdemeanor sentences were ordered to be served consecutively
    with each other and concurrently with the other counts.
    {¶3}     Counsel for appellant has filed a Motion to Withdraw and a brief pursuant
    to Anders v. California (1967), 
    386 U.S. 738
    , rehearing den. (1967), 
    388 U.S. 924
    ,
    indicating that the within appeal was wholly frivolous and setting forth two proposed
    assignments of error.            Appellant did file a pro se brief alleging one additional
    assignment of error as well as one assignment of error which mirrors one raised by
    counsel relative to the consecutive sentences.
    {¶4}     Appellant raises the following potential assignments of error:
    I
    {¶5}     “THE      TRIAL      COURT   ERRED     BY   OVERRULING       APPELLANT’S
    CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL.”
    Licking County App. Case No. 10-CA-138                                                   3
    II
    {¶6}   “THE TRIAL COURT ERRED IN FAILING TO MAKE THE REQUIRED
    FINDINGS UNDER R.C. 2929.14(E)(4) TO JUSTIFY CONSECUTIVE SENTENCES.”
    III
    {¶7}   “TRIAL COUNSEL WAS INEFFECTIVE IN MULTIPLE WAYS, AND THE
    CUMMULATIVE EFFECT RESULTED IN PREJUDICE OF DEFENDANT. (1) FAILING
    TO RENEW CRIM.R. 29 MOTION FOR ACQUITTAL AT THE CLOSE OF ALL
    EVIDENCE. (2) FAILING TO CALL KEY WITNESSES (3) FAILING TO PRESENT
    DEFENDANTS PHONE RECORDS.”
    {¶8}   In Anders, the United States Supreme Court held if, after a conscientious
    examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
    then he should so advise the court and request permission to withdraw. Id. at 744.
    Counsel must accompany his request with a brief identifying anything in the record that
    could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
    with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
    to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
    these requirements, the appellate court must fully examine the proceedings below to
    determine if any arguably meritorious issues exist. If the appellate court also determines
    that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
    dismiss the appeal without violating constitutional requirements, or may proceed to a
    decision on the merits if state law so requires. Id.
    {¶9}   Counsel in this matter has followed the procedure in Anders v. California
    (1967), 
    386 U.S. 738
    , we find the appeal to be wholly frivolous and grant counsel’s
    Licking County App. Case No. 10-CA-138                                                       4
    motion to withdraw. For the reasons which follow, we affirm the judgment of the trial
    court:
    I
    {¶10} In his first assignment of error, appellant argues the trial court erred in
    denying appellant’s motion for acquittal.
    {¶11} Crim. R. 29(A) requires a trial court, upon motion of the defendant, to
    enter a judgment of acquittal of one or more offenses charged in an indictment if the
    evidence is insufficient to sustain a conviction of the offense or offenses. However, a
    trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record
    demonstrates that reasonable minds can reach different conclusions as to whether each
    material element of a crime has been proven beyond a reasonable doubt. On appeal of
    the denial of a Crim .R. 29(A) motion, 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.
    Williams, 
    74 Ohio St.3d 569
    , 576, 
    1996-Ohio-91
    , 
    660 N.E.2d 724
    , citing State v. Jenks
    (1991), 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
    , paragraph two of the syllabus.
    {¶12} Appellant   was    convicted   of       Robbery,   Intimidation   of   a   Crime
    Victim/Witness, two counts of Assault, and Intimidation of a Public Servant. The facts
    presented in the State’s case taken in the light most favorable to the State established
    that appellant and three other men were involved in a day of heavy drinking. The men
    moved their location during the course of the day ending up near appellant’s home.
    Appellant physically attacked two of his drinking partners and demanded one of their
    cell phones. After taking the cell phone, appellant told the phone’s owner that he would
    Licking County App. Case No. 10-CA-138                                                  5
    kill him if he called the police. Two other witnesses testified to the events. Police were
    called, and appellant was arrested. Thereafter, the cell phone was discovered after a
    search of appellant’s house.
    {¶13} At the time of the arrest, appellant threatened police. Furthermore, he
    was acting in such a manner as to require police to institute additional safeguards in
    transporting appellant.
    {¶14} Upon review of the evidence, we find appellant has failed to demonstrate
    that when the evidence is considered in a light most favorable to the State a reasonable
    trier of fact could not have found that all of the elements of each offense were proven
    beyond a reasonable doubt.      For this reason, we find the trial court did not err in
    denying appellant’s motion for acquittal.
    {¶15} Appellant’s first assignment of error is overruled.
    II
    {¶16} In his second assignment of error, appellant maintains the trial court
    improperly imposed consecutive sentences.
    {¶17} In State v. Foster, the Ohio Supreme Court held, trial courts “have full
    discretion to impose a prison sentence within the statutory range and are no longer
    required to make findings or give their reasons for imposing maximum, consecutive, or
    more than the minimum sentences.” Foster, 
    109 Ohio St.3d 1
    , 
    2006-Ohio-856
    , 
    845 N.E.2d 470
    , ¶ 100.
    {¶18} The Ohio Supreme Court recently reaffirmed its hold in Foster, “We hold
    that the decision of the United States Supreme Court in Oregon v. Ice does not revive
    Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
    Licking County App. Case No. 10-CA-138                                                     6
    2929.41(A), which were held unconstitutional in State v. Foster. Because the statutory
    provisions are not revived, trial court judges are not obligated to engage in judicial fact-
    finding prior to imposing consecutive sentences unless the General Assembly enacts
    new legislation requiring that findings be made.” State v. Hodge, 
    2010 WL 5392914
    .
    {¶19} Because the sentences in this case are within the range provided by R.C.
    2929.14, the trial court did not abuse its discretion in imposing consecutive sentences.
    {¶20} For this reason, appellant’s second assignment of error is overruled.
    III
    {¶21} In his final assignment of error, appellant avers he was denied effective
    assistance of trial counsel because trial counsel failed to renew the motion for acquittal,
    failed to call two of the four police officers who were at the scene of the offense, and
    failed to introduce appellant’s phone records into evidence.
    {¶22} We have already determined the motion for acquittal lacked merit,
    therefore, appellant has not shown any prejudice due to the failure to renew the motion
    for acquittal.
    {¶23} With regard to failing to introduce certain witnesses, counsel's decision
    regarding the calling of witnesses is within the purview of trial strategy. State v. Coulter
    (1992), 
    75 Ohio App.3d 219
    , 230, 
    598 N.E.2d 1324
    ; State v. Hunt (1984), 
    20 Ohio App.3d 310
    , 312, 
    486 N.E.2d 108
    . The failure to subpoena witnesses for trial does not
    violate counsel's duty to defendant absent a showing of prejudice.        
    Id.
     Accordingly,
    courts have traditionally been reluctant to find ineffective assistance of counsel in those
    cases where an attorney fails to call a particular witness. See State v. Otte (1996), 74
    Licking County App. Case No. 10-CA-138 
    7 Ohio St.3d 555
    , 565-66, 
    660 N.E.2d 711
    ; State v. Williams (1996), 
    74 Ohio St.3d 456
    ,
    
    659 N.E.2d 1254
    .
    {¶24} There is nothing in the record before us on appeal which would
    demonstrate prejudice in failing to call the remaining two officers who were at the scene.
    {¶25} As it relates to the failure to introduce phone records, likewise, the phone
    records are not in the record before us. Appellant has again failed to demonstrate the
    failure to introduce these records prejudiced appellant.
    {¶26} For these reasons, appellant’s third assignment of error is overruled.
    By: Edwards, J.
    Gwin, P.J. and
    Wise, J. concur
    ______________________________
    ______________________________
    ______________________________
    JUDGES
    JAE/as1031
    [Cite as State v. Small, 
    2012-Ohio-149
    .]
    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                     :
    :
    Plaintiff-Appellee   :
    :
    :
    -vs-                                              :       JUDGMENT ENTRY
    :
    DOUGLAS D. SMALL                                  :
    :
    Defendant-Appellant       :       CASE NO. 10-CA-138
    For the reasons stated in our accompanying Memorandum-Opinion on file, the
    judgment of the Licking County Court of Common Pleas is affirmed. Attorney Kinsman
    is permitted to withdraw as counsel of record. Costs assessed to appellant.
    _________________________________
    _________________________________
    _________________________________
    JUDGES
    

Document Info

Docket Number: 10-CA-138

Judges: Edwards

Filed Date: 1/13/2012

Precedential Status: Precedential

Modified Date: 10/30/2014