State v. Dorsey , 2012 Ohio 4043 ( 2012 )

[Cite as State v. Dorsey, 2012-Ohio-4043.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110623
TRIAL NO. 10CRB-35308-B
Plaintiff-Appellee, :
vs. : O P I N I O N.
DIONTE DORSEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed from is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: September 7, 2012
John Curp, City Solicitor, Charles Rubenstien, City Prosecutor, and Marva K.
Benjamin, Assistant City Prosecutor, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendant-appellant Dionte Dorsey appeals from the judgment of the
Hamilton County Municipal Court convicting him of possessing criminal tools, in
violation of R.C. 2923.24(A). He argues that the trial court erroneously admitted
other-acts testimony over his objection and that his conviction was not supported by
sufficient evidence. We find merit to both arguments, and we reverse the trial court’s
judgment.
Background Facts
{¶2} Around midnight on October 27, 2010, Cincinnati Police Officer Ron
Schultz received a radio broadcast concerning the theft of food items from a nearby
United Dairy Farmers (“UDF”) store. According to Schultz, Dorsey and his younger
brother, who were walking along the street two or three blocks away, matched the
description of the suspects. Schultz testified that as he approached he observed
Dorsey throw on the ground food items, such as a bag of chips, and a roofing
hammer. Schultz then arrested Dorsey for possessing criminal tools.1 When
questioned, Dorsey admitted to throwing the food items, but he denied throwing the
hammer. After a search, Schultz found two screwdrivers in Dorsey’s pocket. Dorsey
declined to answer Schultz’s inquiry as to why he had the screwdrivers.
{¶3} At trial, Schultz testified that in many of the automobile thefts that he
had investigated through the years, a screwdriver had been shoved into the stripped
steering column and used as the key, and a hammer had been found on the floor
board. Schultz also testified, over Dorsey’s objection, that he had had contact with
Dorsey sometime in the summer of 2010, when he had “charged” him with receiving
1 Dorsey was also charged with theft, but that offense is not at issue on appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
stolen property for being in a stolen automobile with a stripped steering column.
The officer admitted on cross-examination that he had not observed Dorsey breaking
into an automobile on October 27, 2010, that he was not aware that an automobile
theft had been attempted or had occurred on that date, and that he had never known
anyone to use a screwdriver or hammer to steal food from a store shelf.
{¶4} Schultz was the only witness who testified at trial. After his
testimony, Dorsey moved for an acquittal. The trial court overruled Dorsey’s motion
and convicted him of possessing criminal tools. Dorsey then appealed.
{¶5} In two assignments of error, Dorsey argues that the trial court erred
by admitting Schultz’s challenged testimony, and that his conviction for possessing
criminal tools was not supported by sufficient evidence and was against the manifest
weight of the evidence.
{¶6} Before addressing the merits of the appeal, we note that the state did
not file an appellate brief. App.R. 18(C) gives us the discretion to “accept [Dorsey’s]
statement of the facts and issues as correct and reverse the judgment if [Dorsey’s]
brief reasonably appears to sustain such action.”
Possessing-Criminal-Tools Statute
{¶7} Both of Dorsey’s assignments of error implicate the evidence to
sustain a conviction for possessing criminal tools. R.C. 2923.24, possessing criminal
tools, states: “(A) No person shall possess or have under the person’s control any
substance, device, instrument, or article, with purpose to use it criminally.” The
statue requires “both control of the article and the specific intention to use the article
to commit a crime.” State v. McDonald, 31 Ohio St.3d 47, 49, 509 N.E.2d 57 (1987).
{¶8} To more easily establish the element of criminal intent, the legislature
has enacted the following statutory presumptions, which may be rebutted:
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OHIO FIRST DISTRICT COURT OF APPEALS
(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 [a] 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 specifically 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.
R.C. 2923.24(B).
{¶9} A criminal purpose in possessing certain items may “reasonably be
inferred” from this evidence. See 1974 Committee Comment to R.C. 2923.24.
{¶10} Where the evidence does not fall within one of these three
circumstances, the state must prove criminal purpose beyond a reasonable doubt
without the benefit of the statutory inference. State v. Anderson, 1 Ohio App.3d 62,
64, 439 N.E.2d 450 (1st Dist.1981). See also State v. Hicks, 186 Ohio App.3d 528,
2009-Ohio-5302, 929 N.E.2d 461, ¶ 12 (2d Dist.). “Mere suspicion” of a criminal
intent is not enough. Anderson at 64.
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OHIO FIRST DISTRICT COURT OF APPEALS
Other-Act Evidence
{¶11} In his first assignment of error, Dorsey argues that the trial court
erred by admitting Schultz’s testimony involving other acts that occurred in the
summer of 2010. He argues the testimony was neither probative of his intent on
October 27, 2010, nor was it admitted for any purpose other than an attempt to show
Dorsey’s general propensity to commit crimes, a purpose specifically prohibited by
Evid.R. 404(A) and R.C. 2945.59.
{¶12} Evid.R. 404 codifies the common law with respect to other-act
evidence. State v. Morris, ___ Ohio St.3d ___, 2012-Ohio-2407, ___ N.E.2d ___,
syllabus. Evidence of other acts, crimes, or wrongs is not admissible to prove the
character of a person to show acts in conformity on a particular occasion, but it may
be admissible for other purposes, such as those listed in Evid.R. 404(B) and R.C.
2945.59. See Evid.R. 404(A) and (B); State v. Griffin, 142 Ohio App.3d 65, 71-72,
753 N.E.2d 967 (1st Dist.2001). Other bad acts may be admissible “to establish
circumstantially either an element of the crime or a material fact at issue.” Griffin at
71.
{¶13} The trial court must strictly construe this evidence against
admissibility. See State v. DeMarco, 31 Ohio St.3d 191, 194, 509 N.E.2d 1256 (1987).
The other-act evidence must also meet the other requirements of admissibility set
forth in the rules of evidence. See Evid.R. 403; Evid.R. 402.
{¶14} We apply an abuse-of-discretion standard in our review of a trial
court’s decision to admit other-act evidence under Evid.R. 404(B). Morris, ___
Ohio St.3d ___, 2012-Ohio-2407, ___ N.E.2d ___, syllabus. The Ohio Supreme
Court has declared that “[t]he term ‘abuse of discretion’ connotes more than an error
of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
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OHIO FIRST DISTRICT COURT OF APPEALS
unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
And the court has defined an “unreasonable” decision as one that is not supported by
a “sound reasoning process.” AAAA Enterprises, Inc. v. River Place Community
Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), cited in Morris,
at ¶ 14.
{¶15} In applying the abuse of discretion standard, we are not free to
substitute our judgment for that of the trial judge. See Morris at ¶ 14.
{¶16} At trial, the state argued that the other-acts testimony was probative
of Dorsey’s intent to use the hammer and screwdrivers for a criminal purpose—an
element of the offense of possessing criminal tools—and, therefore, admissible as an
exception set forth in Evid.R. 404(B). The trial court implicitly agreed and admitted
the evidence over Dorsey’s objection.
{¶17} But the challenged testimony was not probative of the statutory
inference set forth in R.C. 2923.24(B)(3), because it did not demonstrate the
circumstances under which Dorsey possessed the hammer and screwdrivers in late
October 2010.
{¶18} Further, the testimony involved Dorsey’s mere presence in a stolen
automobile with a stripped steering column one-to-four months before Schultz found
him in possession of the hammer and screwdrivers. Dorsey was not “charged” with
automobile theft at that time and there was no testimony that anyone, including
Dorsey, had used a screwdriver or hammer to steal that automobile. At best, the
state’s theory of relevance involved an impermissible inference upon an inference.
See State v. Cowans, 87 Ohio St.3d 68, 78-79, 717 N.E.2d 298 (1999). As such, it was
not admissible to demonstrate Dorsey’s intent or for any of the purposes recognized
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OHIO FIRST DISTRICT COURT OF APPEALS
in Evid.R. 404(B), especially without any nexus between those facts and Dorsey’s
possession of the articles in late October 2010.
{¶19} From the record before us, we are unable to discern a sound
reasoning process to support the trial court’s admission of Schultz’s testimony.
Therefore, we conclude that the court’s decision to admit the challenged testimony
was unreasonable and an abuse of discretion. See, e.g., State v. Huff, 145 Ohio
App.3d 555, 566, 763 N.E.2d 695 (1st Dist.2001); State v. Zamorski, 141 Ohio App.3d
521, 525, 752 N.E.2d 288 (1st Dist.2000); State v. Echols, 128 Ohio App.3d 677,
698-699; 716 Ohio App.3d 728, (1st Dist.1998); Eckert v. Jacobs, 1st Dist. No. C-
910445, 1992 Ohio App. LEXIS 5920.
{¶20} And, the error was not harmless, because the trial court must have
relied on the challenged testimony to determine Dorsey’s criminal intent, in the
absence of other evidence on that element. Accordingly, we sustain the first
assignment of error.
Sufficiency and Weight-of-the-Evidence Claims
{¶21} In his second assignment of error, Dorsey argues that his conviction
was not supported by sufficient evidence. Alternatively, he contends that if the
record contains sufficient evidence, then his conviction was against the manifest
weight of that evidence.
{¶22} On a sufficiency-of-the-evidence review, the relevant inquiry is
whether, after viewing the evidence in the light most favorable to the state, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} In this case, the state attempted to establish a prima-facie case under
the statutory inference set forth in R.C. 2923.24(B)(3). That statutory inference
would apply if the state established (1) that the hammer or screwdrivers were
commonly used for criminal purposes and (2) that Dorsey possessed the article
under circumstances indicating that he intended to put it to that criminal use. See,
e.g., State v. Sanders, 9th Dist. No. 23504, 2007-Ohio-2898, ¶ 15; State v. Castle,
9th Dist. No. 19324, 1999 Ohio App. LEXIS 4726; State v. Colon, 9th Dist. No.
91CA005003, 1992 Ohio App. LEXIS 1536; State v. Liddell, 8th Dist. No. 37134, 1978
Ohio App. LEXIS 9838.
{¶24} Although Schultz testified that screwdrivers and hammers are
commonly used to commit automobile theft, there was no evidence at trial linking
Dorsey to an actual or planned automobile theft in October 2010, near the time of
possession.
{¶25} The state argued the circumstances demonstrated Dorsey’s intent to
use the screwdrivers and hammer criminally because Schultz had once “charged”
Dorsey with receiving stolen property, after finding him in a stolen automobile with a
stripped steering column. Further, Dorsey had not explained why he was carrying
those items when Schultz arrested him in October 2010.
{¶26} But as discussed under the first assignment of error, Dorsey’s mere
presence in a stolen automobile with a stripped steering column sometime in the
summer of 2010 was not probative of his intent to use the screwdriver or hammer in
late October 2010 to commit automobile theft. The trial court should not have
admitted this testimony for that purpose. And Dorsey did not have to rebut the
inference that can arise under R.C. 2923.24(B)(3), by explaining his possession of
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OHIO FIRST DISTRICT COURT OF APPEALS
the articles, until after the state had presented prima-facie evidence of his criminal
purpose, which it failed to do.
{¶27} Because the state failed to present the necessary facts to establish
prima-facie evidence of a criminal purpose, the state had to prove the element of
criminal purpose without the benefit of the statutory inference.
{¶28} Ultimately, the evidence was not sufficient to permit reasonable
minds to conclude beyond a reasonable doubt that Dorsey possessed the hammer
and screwdrivers with purpose to use them to commit any crime. As noted by
Dorsey, the offense occurring near the time of Dorsey’s possession was the theft of
food items from a shelf at UDF, and Schultz’s testimony provided no reasonable
basis to conclude that Dorsey used or attempted to use the articles to commit that
offense.
{¶29} Without this evidence, the state failed to establish that Dorsey
possessed criminal tools. Accordingly, we sustain the second assignment of error on
the ground that the conviction was not supported by sufficient evidence.
Conclusion
{¶30} The trial court erred by allowing Shultz to testify to his prior contact
with Dorsey where the testimony involved a prior bad act and was not admissible
under Evid.R. 404(B). Further, the state failed to present facts necessary to gain the
benefit of the statutory inference of criminal intent and otherwise failed to establish
that Dorsey possessed a hammer and two screwdrivers with purpose to use them
criminally. We reverse the judgment of conviction, and we discharge Dorsey from
further prosecution for possessing criminal tools.
Judgment reversed and appellant discharged.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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