State v. Thorn , 109 N.E.3d 165 ( 2018 )

[Cite as State v. Thorn, 2018-Ohio-1028.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 16 BE 0054
V. ) 17 BE 0013
)
JASON MYERS THORN, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Belmont County, Ohio
Case No. 16 CR 167
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee Attorney J. Flanagan
Courthouse Annex 1
147-A West Main Street
St. Clairsville, Ohio 43950
No Brief Filed
For Defendant-Appellant Attorney Peter Galyardt
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: March 15, 2018
[Cite as State v. Thorn, 2018-Ohio-1028.]
DONOFRIO, J.
{¶1} Defendant-appellant, Jason Thorn, appeals his conviction in the
Belmont County Court of Common pleas following a jury trial for one count of
possession of drugs in violation of R.C. 2925.11(A)(C)(6)(a), a felony of the fifth
degree, and one count of theft in violation of R.C. 2913.02(A)(1), a misdemeanor of
the first degree.
{¶2} Appellant entered a Walmart store and picked up three internet routers
from the electronics section. Appellant then took the routers to the customer service
desk where he attempted to return them for store credit. The store credit would have
been placed on a gift card. After appellant handed the routers over to customer
service representatives but before appellant received the gift card from Walmart
employees, appellant was detained by Walmart security for the fraudulent return of
the routers. Walmart security then called the Belmont County Sheriff’s Department
who arrested appellant for theft. Police then performed a search incident to an arrest
which revealed that appellant was in possession of a small amount of a substance
deputies believed to be heroin. The substance was later confirmed to be heroin.
{¶3} Appellant appeared in the Belmont County Court, Northern Division for
an initial appearance where his Crim.R. 5 rights were read. The Belmont County
Court, Northern Division then scheduled a preliminary hearing. The preliminary
hearing was continued multiple times for various reasons but appellant never
appeared for the hearing and a warrant was issued for his arrest. Appellant never
appeared for the preliminary hearing because he was incarcerated in Pennsylvania
on or about February 17, 2015 for a parole violation. On February 23, 2015, appellant
submitted an inmate request to the Pennsylvania Department of Corrections
apparently attempting to exercise his rights pursuant to the Interstate Agreement on
Detainers (IAD) to resolve his outstanding charges in Belmont County, Ohio.
{¶4} On September 2, 2015, appellant filed a pro se motion in the Belmont
County Court, Northern Division to dismiss this action pursuant to the IAD for
violations of his right to a speedy trial. Appellant attached numerous exhibits to this
motion, including his February 23, 2015 inmate request. On September 4, 2015, the
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Belmont County Court, Northern Division denied appellant’s motion on the basis that
he never filed a demand with the court.
{¶5} On December 28, 2015, the Belmont County Court, Northern Division
received a handwritten letter from appellant seeking the disposition of the charges
against him using other methods than him being present in court, such as video
conference. In this letter, appellant specifically stated that he did not want to exercise
his rights pursuant to the IAD on the basis that his transfer to Ohio would negatively
impact his Pennsylvania rehabilitation programs.
{¶6} Appellant eventually appeared in the Belmont County Court, Northern
Division on February 26, 2016. This was over one year after appellant was arrested
for theft and possession of heroin. On March 7, 2016, appellant filed another motion
to dismiss this action pursuant to the IAD for violations of his right to a speedy trial.
On May 20, 2016, the Belmont County Court, Northern Division denied this motion
again on the basis that appellant never filed a demand for a trial in Belmont County
and that appellant’s December 28, 2015 letter specifically waived any right appellant
had under the IAD.
{¶7} Appellant was then indicted on both counts and the case was
transferred to the Belmont County Court of Common Pleas. The trial court issued
appellant a personal recognizance bond but appellant was still detained in Belmont
County for purposes of continuing his Pennsylvania sentence.
{¶8} There were several pretrial hearings that concerned multiple pretrial
issues. Relevant to this appeal, on July 25, 2016, a pretrial hearing was held in which
the trial court informed appellant that if he were convicted and sentenced in this
matter, he would receive jail credit for the time he served in an Ohio jail while
awaiting trial.
{¶9} Also relevant to this appeal, the trial court held a hearing on August 29,
2016. The August 29, 2016 hearing concerned a pro se motion appellant filed
seeking to dismiss this action again pursuant to the IAD for violations of appellant’s
right to a speedy trial. The trial court denied this motion to dismiss.
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{¶10} A jury trial was eventually conducted in this action. At the conclusion of
the State of Ohio’s, case, appellant moved pursuant to Crim.R. 29 to dismiss the theft
charge on the basis that the state failed to prove that appellant exerted control over
any property of Walmart. The trial court denied appellant’s motion. At the conclusion
of the trial, the jury found appellant guilty of both counts.
{¶11} During the sentencing hearing, appellant requested that he be given jail
credit for all time served while in jail in Belmont County, Ohio while he was awaiting
trial. Appellant argued that this amounted to 215 days. This was also the amount of
jail credit listed in appellant’s presentence report. But the trial court noted that the
215 days of credit listed in the presentence report was a mistake as the trial court
issued appellant a recognizance bond. The trial court noted that appellant had only
seven days of jail credit. Ultimately, the trial court sentenced appellant to serve one
year of incarceration on the drug possession conviction and six months of
incarceration on the theft conviction. The trial court ordered that these sentences be
served concurrently and gave appellant seven days of jail credit.
{¶12} The trial court’s sentence was memorialized in a journal entry dated
September 21, 2016. Appellant timely filed this appeal on October 11, 2016.
Appellant now raises three assignments of error.
{¶13} Appellant’s first assignment of error states:
THE COURTS BELOW COMMITTED REVERSIBLE ERROR
WHEN THEY DENIED JASON THORN’S MOTIONS TO DISMISS ON
SPEEDY-TRIAL GROUNDS. R.C. 2963.30 SEPT. 4, 2015 JOURNAL
ENTRY (BELMONT COUNTY NORTHERN DIVISION COURT, CASE
NO. 15-CRA-50); MAY 25, 2016 JOURNAL ENTRY (BELMONT
COUNTY NORTHER DIVISION COURT, CASE NO. 15-CRA-50);
AUG. 31, 2016 JOURNAL ENTRY.
{¶14} Appellant argues that he substantially complied with his requirements
pursuant to Ohio’s IAD codified at R.C. 2963.30. Appellant argues that because he
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substantially complied with the IAD, his trial should have occurred within 180 days of
his substantial compliance. As that did not happen, appellant argues that his speedy
trial right was violated and the trial court’s denial of his motion to dismiss was error.
{¶15} The state did not file an answer brief in this matter. Pursuant to App.R.
18(C), this Court may accept the appellant’s statement of the facts as true and issues
as correct and reverse the judgment if appellant’s brief reasonably appears to sustain
such action.
{¶16} A trial court’s decision on a motion to dismiss is reviewed under a de
novo standard of review. Columbiana v. Frost, 7th Dist. No. 14-CO-38, 2016-Ohio-
1057 ¶ 19 citing State v. Rhode, 11th Dist. No. 2010-P-0015, 2011-Ohio-2455. “A de
novo standard of review affords no deference to the trial court’s decision, and the
appellate court independently reviews the record.” Id. citing Gilchrist v. Gonsor, 8th
Dist. No. 88609, 2007-Ohio-3903. Trial court decisions concerning the interpretation
of the IAD are also subject to a de novo review. State v. Braden, 197 Ohio App. 3d
534, 2011-Ohio-6691, 968 N.E.2d 49 (11th Dist.).
{¶17} Ohio became a party state to the IAD in 1969. Pennsylvania is also a
party state to the IAD. The IAD provides, in relevant part:
(a) Whenever a person has entered upon a term of imprisonment in a
penal or correctional institution of a party state, and whenever during the
continuance of the term of imprisonment there is pending in any other
party state any untried indictment, information or complaint on the basis
of which a detainer has been lodged against the prisoner, he shall be
brought to trial within one hundred eighty days after he shall have
caused to be delivered to the prosecuting officer and the appropriate
court of the prosecuting officer's jurisdiction written notice of the place of
his imprisonment and his request for a final disposition to be made of the
indictment, information or complaint: provided that for good cause shown
in open court, the prisoner or his counsel being present, the court having
jurisdiction of the matter may grant any necessary or reasonable
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continuance. The request of the prisoner shall be accompanied by a
certificate of the appropriate official having custody of the prisoner,
stating the term of commitment under which the prisoner is being held,
the time already served, the time remaining to be served on the
sentence, the amount of good time earned, the time of parole eligibility of
the prisoner, and any decisions of the state parole agency relating to the
prisoner.
(b) The written notice and request for final disposition referred to in
paragraph (a) hereof shall be given or sent by the prisoner to the
warden, commissioner of corrections or other official having custody of
him, who shall promptly forward it together with the certificate to the
appropriate prosecuting official and court by registered or certified mail,
return receipt requested.
R.C. 2963.30 Art. III(a)-(b).
{¶18} The 180 day speedy trial time period begins to run when a defendant
substantially complies with the requirements set forth in Articles III(a) and III(b) of
R.C. 2963.30. State v. Quinones, 168 Ohio App. 3d 425, 428, 2006-Ohio-4096, 860
N.E.2d 793 quoting State v. Mourney, 64 Ohio St. 3d 482, 485, 597 N.E.2d 101
(1992). Substantial compliance means the defendant did “everything that could be
reasonably expected.” Id. quoting State v. Ferguson, 41 Ohio App. 3d 306, 535
N.E.2d 708 (10th Dist. 1987).
{¶19} The record shows that the first motion to dismiss appellant made
concerning the IAD was his September 2, 2015 motion in the Belmont County Court,
Northern Division. In this motion, appellant argued that his right to a speedy trial was
violated and moved to dismiss the charges pursuant to the IAD. Appellant attached to
this motion a copy of an inmate request he made dated February 23, 2015 to his
Pennsylvania corrections superintendent, Mark Copozza. The request states:
I’m requesting in need to resolve current charges [i]n Belmont County,
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Ohio. I want to exercise my right to resolve charges using the
In[t]erstate Agreement on Detainers, (IAD). Please [refer] me to the
proper people to accomplish these [proceedings].
September 2, 2015 motion to dismiss, ¶ 10 exhibit.
{¶20} Article III of the IAD requires the detainee to serve notice on both the
prosecutor and the court, which must also contain a certification from the warden
stating the terms of the detainee’s incarceration. State v. Levy, 8th Dist. No. 83114,
2004-Ohio-4489, ¶ 10. In this case, the record does not indicate that appellant filed
such a demand with the court or the prosecutor. There is also no indication in the
record of a certificate from any Pennsylvania correctional facility stating the terms of
appellant’s incarceration. Because appellant did not file a proper demand pursuant to
the IAD, the trial court’s decision to deny appellant’s motion to dismiss was not error.
{¶21} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
{¶22} Appellant’s second assignment of error states:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT DID NOT GIVE JASON THORN JAIL-TIME CREDIT FOR
ALL OF THE TIME THAT HE SPENT IN JAIL. R.C. 2967.191. JULY 25,
206 TR. 5. SEPT. 21, 2016 SENTENCING JUDGMENT ENTRY; FEB
9, 2017 JOURNAL ENTRY.
{¶23} Appellant argues that not only did he spend 215 days incarcerated in
Belmont County awaiting trial on this action, he was promised by the trial court that
he would receive jail credit for each day he spent incarcerated. At the sentencing
hearing, appellant only received credit for seven days and now argues that he is
entitled to the full 215 days of credit.
{¶24} An appellate court may vacate or modify a felony sentence on appeal
only if it determines by clear and convincing evidence that the record does not
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support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law. State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59
N.E.3d 1231 ¶ 1 citing R.C. 2953.08(G)(2).
{¶25} The Sixth District dealt with almost an identical issue in State v.
Lawrence, 6th 111 Ohio App. 3d 44, 675 N.E.2d 569 (6th Dist. 1996). In Lawrence,
defendant-appellant Lawrence was serving a thirty-year sentence in Indiana when he
was indicted in the Fulton County Court of Common Pleas in Ohio for one count of
complicity to commit aggravated murder and one count of breaking and entering. Id.
at 45. Lawrence was then transferred to Fulton County, Ohio under the IAD. Id.
Lawrence pled guilty to the breaking and entering charge and not guilty to the
complicity to commit aggravated murder charge. Id. The trial court did not set a bond
in this matter. Id. After the jury trial, Lawrence was found not guilty on the complicity
to commit aggravated murder charge. Id. After Lawrence was found guilty on the
breaking and entering charge, he was sentenced to one and a half years of
incarceration which was to be served consecutively with his Indiana prison sentence.
Id. at 46. Lawrence was then transferred back to Indiana. Id. Lawrence then filed a
motion for credit for time served with the trial court which was denied. Id.
{¶26} In affirming the trial court’s decision, the Sixth District held that issuing
Lawrence a bond would have been superfluous because he was “deemed to remain
in the custody of and subject to the jurisdiction of the sending state” while he was
being held and awaiting trial in Ohio. Id. at 46-47. In essence, while a bond was not
issued but Lawrence was detained, he was deemed to be serving his Indiana
sentence in Ohio while he was awaiting trial.
{¶27} In this case, appellant was issued a recognizance bond but was still
detained in Ohio due to his parole violation in Pennsylvania. While awaiting trial in
Ohio, appellant was still in the custody of and subject to the jurisdiction of the
sending state, Pennsylvania, pursuant to R.C. 2963.30, Article V(g).
{¶28} Appellant also argues that, under the doctrine of promissory estoppel,
he is entitled to the full 215 days of credit for time served. Appellant argues that the
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following passage made to him by the trial court constitutes a promise that appellant
relied on and that the trial court should be estopped from revoking:
The Court: Is your question whether you will receive credit for the time
served that you spend here in the county jail?
The Defendant: Well, yeah, that’s a question.
***
The Court: You would receive credit for the time you serve in our jail. I
don’t know if Pennsylvania will do the same. That’s up to them.
July 25, 2016 Tr. 5.
{¶29} Appellant’s argument lacks merit for two reasons. First, as appellant
points out, the principle of estoppel does not apply against a state or its agencies in
the exercise of a governmental function. Ohio State Bd. of Pharmacy v. Frantz, 51
Ohio St. 3d 143, 145-146, 555 N.E.2d 630 (1990). Second, as previously stated, the
record indicates that appellant was not being detained in Ohio to guarantee his
presence at trial, he was being detained in Ohio pursuant to the IAD for his parole
violation in Pennsylvania.
{¶30} Moreover, the equity principles of estoppel that appellant relies on in his
brief would not be served if he received 215 days of jail credit. If appellant were to
receive 215 days of jail credit on his sentence in this case, then the time appellant
spent incarcerated in Ohio pursuant to his Pennsylvania parole violation would also
count towards any future sentence he would have received in this action. In essence,
appellant would be receiving double jail credit. Ultimately, the trial court’s judgment
granting appellant only seven days of jail credit was proper.
{¶31} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
{¶32} Appellant’s third assignment of error states:
THE TRIAL COURT ERRED IN DENYING JASON THORN’S CRIM. R.
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29 MOTION FOR ACQUITTAL, AND VIOLATED HIS RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF
SUFFICIENT EVIDENCE, IT CONVICTED HIM OF THEFT. FIFTH
AND FOURTEENTH AMENDMENTS, UNITED STATES
CONSTITUTION; ARTICLE 1, SECTIONS 10 AND 16, OHIO
CONSTITUTION. R.C. 2913.02. TRIAL TR. 119-121, 125-126, 194-
195, 207-208. SEPT. 21, 2016 SENTENCING JUDGMENT ENTRY.
{¶33} Appellant argues that the state failed to prove beyond a reasonable
doubt that he obtained or exerted control over the gift card at issue. As this is an
element of theft, appellant argues that there is insufficient evidence in the record to
support his theft conviction.
{¶34} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Dickson, 7th Dist. No. 12 CO 50, 2013-
Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St. 3d 89, 113, 684 N.E.2d 668
(1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally sufficient
to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
proven beyond a reasonable doubt. Id. citing State v. Goff, 82 Ohio St. 3d 123, 138,
694 N.E.2d 916 (1998). When evaluating the sufficiency of the evidence to prove the
elements, it must be remembered that circumstantial evidence has the same
probative value as direct evidence. Id. citing State v. Jenks, 61 Ohio St. 3d 259, 272-
273, 574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other
grounds).
{¶35} Count 2 of appellant’s indictment was for theft pursuant to R.C.
2913.02(A)(1). “No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property * * * without the
consent of the owner or person authorized to give consent.” R.C 2913.02(A)(1).
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{¶36} Appellant contends that he did not commit theft because he never
obtained nor exerted control over anything of monetary value when he attempted to
fraudulently return the routers. Appellant argues Cedric Robinson, one of the
Walmart loss prevention employees who observed appellant inside the store, testified
at trial that appellant never had possession or exerted control over a gift card. (Trial
Tr. 113-114, 121).
{¶37} The Fifth District’s decision in State v. Spencer, 5th Dist. No.
2015CA00188, 2016-Ohio-5304, provides some guidance on this issue. In Spencer,
Spencer dropped off an accomplice in front of a Lowe’s store. Id. at ¶ 2. The
accomplice picked up a rug inside the store and placed it in a shopping cart. Id.
Spencer then met his accomplice inside the store and the two proceeded to the
returns aisle to return the rug without paying for it. Id. A Lowe’s employee completed
the return and gave a merchandise card to the accomplice. Id. at ¶ 3.
{¶38} Spencer was then charged and convicted of theft. Id. at ¶ 5. On appeal,
Spencer argued that his theft conviction was insufficient because the element of
obtaining or exerting control over the property was not met. Id. at ¶ 8. Spencer
argued the element was not met because he never touched the rug nor touched the
merchandise card. Id. at ¶ 13. The Eighth District held that because Spencer
engaged in acts consistent with a fraudulent return, he did knowingly obtain or exert
control over the merchandise card. Id.
{¶39} In this case, while appellant did not receive the gift card before being
apprehended, he did initiate a fraudulent return for the purposes of obtaining the gift
card. This is similar to the facts in Spencer where Spencer initiated the fraudulent
return but did not physically possess the stolen merchandise.
{¶40} Moreover, even though appellant did not leave the store with the gift
card in this case, the law does not require the store to wait until the defendant leaves
a store with merchandise before apprehending said defendant for shoplifting. State v.
Arthur, 4th Dist. No. 01CA2818, 2002-Ohio-3764, ¶ 17 citing State v. Williams, 16
Ohio App. 3d 232, 234, 475 N.E.2d 168 (2d Dist. 1984). Ultimately, appellant’s theft
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conviction was sufficient as a matter of law.
{¶41} Accordingly, appellant’s third assignment of error lacks merit and is
overruled.
{¶42} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., Concurs
Robb, P. J., Concurs