State v. Warren , 2013 Ohio 3542 ( 2013 )

[Cite as State v. Warren, 2013-Ohio-3542.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, :
: Case No. 12CA3324
v. :
: DECISION AND
WAYNE WARREN, : JUDGMENT ENTRY
:
Defendant-Appellant. : Released: 08/14/2013
APPEARANCES:
Aaron M. McHenry, Benson, McHenry & Sesser, LLC, Chillicothe, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Assistant
Prosecuting Attorney, for Appellee.
Hoover, J.
{¶1} This is an appeal of a conviction from the Common Pleas Court of Ross
County. On March 8, 2012 a jury found appellant Wayne Warren guilty of Aggravated
Robbery, a felony of the first degree, in violation of R.C. 2911.01. Appellant, Wayne
Warren, sets forth three assignments of error:
I. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW
TO CONVICT WAYNE WARREN OF AGGRAVATED ROBBERY;
OR IN THE ALTERNATIVE, THE CONVICTION WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
II. WAYNE WARREND [sic] WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH
Ross App. No. 12CA3324 2
AMENDMENT TO THE CONSTITUTION AND COMPARABLE
PROVISIONS OF OHIO’S CONSTITUTION.
III. WAYNE WARREN WAS DENIED DUE PROCESS UNDER THE
LAW BECAUSE HE WAS DENIED AN ADEQUATE
PRESERVATION OF THE TRIAL COURT RECORD.
I.
STATEMENT OF FACTS
{¶ 2} On June 6, 2011 appellant Wayne Warren and his neighbor Jeremy Waters,
borrowed a car from appellant’s girlfriend, Amanda Nicholson, to drive to Londonderry,
Ohio to pick up some money purportedly owed to Mr. Waters. Appellant and Mr. Waters
were unable to pick up any money in Londonderry. The two men then left Londonderry
and traveled to Chillicothe, Ohio.
{¶ 3} Mr. Waters testified that when they arrived in Chillicothe, appellant drove
to a bowling alley. Upon arrival at the bowling alley, appellant discovered that it was
closed. Appellant then drove to a Kmart and instructed Mr. Waters to remain in the
vehicle while he went inside the store. According to Mr. Waters, appellant stayed in the
store for approximately five minutes. Appellant returned to the vehicle and then drove to
another shopping mall down the street.
{¶4} Mr. Waters testified that appellant then pulled the vehicle in front of a
woman and told him to “duck.” The back of the car was parked towards the woman, with
Mr. Waters facing away from her. Next, Mr. Waters testified that he heard a woman
scream; but he did not see anything. Appellant reentered the vehicle; and they left the
area.
Ross App. No. 12CA3324 3
{¶5} Carrie Mead testified that she had been shopping at Kroger with her
daughter, Tyessa Mead. Carrie Mead testified that after she put the groceries inside her
trunk, she proceeded to take the cart to the cart corral. At this time Tyessa Mead was
getting back into the car to charge her iPod.
{¶6} According to Carrie Mead, as she was taking the cart back, a car pulled up
beside her. A man stepped out behind her and said, “Could you do me a favor?” Ms.
Mead then turned around and observed the man holding a knife to her stomach. As she
backed away from the man, he tried to grab her purse. Ms. Mead tried to get her cell
phone from her purse as she began screaming for her daughter to lock the doors of the
car. When Tyessa Mead first heard her mother yelling, she got out of the car. Carrie
Mead quickly told Tyessa Mead to get back in the car and lock the doors.
{¶7} Once Carrie Mead began screaming, the man got back into his car and sped
away. Carrie Mead also got in her vehicle. Carried Mead and her daughter were able to
observe the license place number of the car that was leaving the scene. Tyessa Mead
typed the license plate number in a text message and sent it to herself in order to record it.
Carrie Mead then went back into Kroger and told an employee what had happened; and
an employee from Kroger called the police.
{¶8} Carrie Mead and Tyessa Mead went to the Chillicothe Police Department
where Sargent Tom Cunningham interviewed them. During the interview, Carrie Mead
described the man as wearing a light colored shirt and a ball cap. The Meads also gave
the license plate number to authorities. The license plate number was traced through the
Bureau of Motor Vehicles to Amanda Nicholson, appellant’s girlfriend.
Ross App. No. 12CA3324 4
{¶9} The Vinton County Sheriff’s department received the information and sent
two deputies, Ethan Doerr and Pennie McCune, out to Ms. Nicholson’s house. Deputy
McCune testified that shortly after they arrived at Ms. Nicholson’s house, appellant
called Ms. Nicholson on her cell phone. Deputy McCune recognized the voice of
appellant from prior interactions; and Deputy McCune asked to speak with appellant
herself. Deputy McCune asked appellant his location. Appellant responded that he was
not far away. Deputy McClune asked him if he could come to Ms. Nicholson’s
residence; and he replied that he would. Appellant asked if he would be allowed to say
goodbye to his girlfriend before Deputy McCune arrested him.
{¶10} The deputies both testified that when appellant and Mr. Waters arrived,
appellant was driving the car. The deputies ordered the men out of the car and searched
them for weapons. The vehicle was towed and impounded. When Deputy Doerr was
completing the inventory, he discovered a black handled knife in the center console
underneath the parking brake lever.
{¶11} At trial, Carrie Mead was shown the knife found in the vehicle. She
testified that the knife appeared similar to the one that the man was holding during the
encounter in the parking lot.
{¶12} Appellant sets forth three assignments of error for review. First, he
contends that the evidence presented against him at trial was insufficient as a matter of
law to convict him of aggravated robbery. Next, he argues that he was denied effective
assistance of counsel in violation of the Sixth Amendment to the Constitution of the
United States. Finally, appellant claims that he was denied due process because of the
Ross App. No. 12CA3324 5
trial court’s failure to provide the complete trial transcript. Appellee, State of Ohio asks
this court to overrule appellant’s assignments of error and affirm appellant’s conviction.
II.
FIRST ASSIGNMENT OF ERROR
{¶13} In his first assignment of error, appellant argues that there was insufficient
evidence that he committed the offense of Aggravated Robbery beyond a reasonable
doubt. In the alternative, appellant argues that even if sufficient evidence existed to
support a verdict, this Court should find the verdict to be against the manifest weight of
the evidence. Appellant contends that there was no positive identification of the offender
by the victim in this case. Appellant argues that Carrie Mead’s description of the
offender more closely matched that of Mr. Waters and not of him. In addition, appellant
states that the only evidence tending to suggest that he committed the crime was the
testimony of the only other suspect, Mr. Waters. According to appellant, the jury lost
their way; and their verdict was a miscarriage of justice.
Standard of Review
{¶14} The arguments concerning the “sufficiency” and the “manifest weight” of
the evidence are two distinct legal concepts. State v. Davis, 4th Dist. No. 12CA3336,
2013-Ohio-1504, ¶ 12; See State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541(1997). “When reviewing the sufficiency of the evidence, our inquiry focuses primarily
upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably
could support a finding of guilt beyond a reasonable doubt. [Thompkins] at 386 (stating
that ‘sufficiency is a test of adequacy’).” Davis at ¶ 12, citing Thompkins and State v.
Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991). “The standard of review is
Ross App. No. 12CA3324 6
whether, after viewing the probative evidence and inferences reasonably drawn therefrom
in the light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt.” Id. citing Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jenks, 61 Ohio St.3d
at 273.
{¶15} Therefore, when we review a sufficiency of the evidence claim in a
criminal case, we review the evidence in a light most favorable to the prosecution. See
State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio
St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction
on a sufficiency of the evidence claim unless reasonable minds could not reach the
conclusion the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E .2d
226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E .2d 749 (2001).
{¶16} “Although a court of appeals may determine that a judgment of a trial
court is sustained by sufficient evidence, that court may nevertheless conclude that the
judgment is against the weight of the evidence.” Thompkins at 387. When an appellate
court considers a claim that a conviction is against the manifest weight of the evidence,
the court must dutifully examine the entire record, weigh the evidence, and consider the
credibility of witnesses. The reviewing court must bear in mind, however, that credibility
generally is an issue for the trier of fact to resolve. E.g., State v. Issa, 93 Ohio St.3d 49,
67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio St .2d 230, 39 O.O.2d 366, 227
N.E.2d 212 (1967), paragraph one of the syllabus; State v. Murphy, 4th Dist. No.
07CA2953, 2008–Ohio–1744, ¶ 31. Once the reviewing court finishes its examination,
the court may reverse the judgment of conviction only if it appears that the jury, when
Ross App. No. 12CA3324 7
resolving the conflicts in evidence, “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983).
{¶17} If the prosecution presented substantial evidence upon which the trier of
fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of
the offense had been established, the judgment of conviction is not against the manifest
weight of the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978),
syllabus. A reviewing court should find a conviction against the manifest weight of the
evidence only in the “exceptional case in which the evidence weighs heavily against the
conviction.” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175;
see also State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
Analysis
{¶18} Appellant was convicted of Aggravated Robbery, a violation of R.C.
2911.01. The elements of the offense are as follows:
(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the
offender's control and either display the weapon, brandish it, indicate that
the offender possesses it, or use it;
(2) Have a dangerous ordnance on or about the offender's person or under
the offender's control;
Ross App. No. 12CA3324 8
(3) Inflict, or attempt to inflict, serious physical harm on another.
Considering all the evidence, we weigh whether a trier of fact could conclude beyond a
reasonable doubt that appellant committed the offense of Aggravated Robbery.
{¶19} The victim in this case, Carrie Mead, was returning a shopping cart at the
corral when she turned to find a knife at her stomach and a man saying to her, “Can you
do me a favor?” A knife qualifies as a deadly weapon; and it was brandished in
accordance with R.C. 2911.01. See State v. Sims, 4th Dist. 10CA17, 2012-Ohio-238 ¶ 38
(demonstrating that a knife is considered a deadly weapon). Carrie Mead also testified
that the man was reaching and grabbing at her purse. This is evidence that the appellant
was using the knife to try to steal Carrie Mead’s purse.
{¶20} Next, we need to evaluate the evidence presented that tends to demonstrate
that appellant was the offender in this case. Carrie Mead and her daughter recorded the
license plate number of the car driven by the offender. The car was traced back to
Amanda Nicholson, the girlfriend of appellant, who testified that her neighbor Mr.
Waters and appellant borrowed the vehicle that day. However, it was established at trial
that Carrie Mead, just a few days after the incident of June 6, 2011, did not identify
appellant in a photo array. Carrie Mead did describe the offender as wearing a light
colored shirt and a ball cap. The photographs and testimony at trial established that both
Mr. Waters and appellant were wearing t-shirts and ball caps. Mr. Waters was wearing a
blue cut-off t-shirt with a white ball cap, while appellant was wearing a light grey t-shirt
with a red and black ball cap.
{¶21} Mr. Waters testified that he was a passenger in the vehicle with appellant
driving the entire day. He testified that he stayed in the car while they were at the Kroger
Ross App. No. 12CA3324 9
parking lot. Appellant exited the vehicle and told him to “get down.” Mr. Waters then
heard a woman scream; and appellant got back into the car. Mr. Waters testified that
after leaving the Kroger parking lot, appellant apologized to him saying, “Sorry that I got
you in this mess.”
{¶22} After examination of the evidence and elements of aggravated robbery, the
verdict reached by the jury is supported by sufficient evidence. Viewing the evidence in
a light most favorable to the prosecution, a rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. We now turn to
examine whether the verdict is against the manifest weight of the evidence.
{¶23} Our standard of review requires us to find this to be an “exceptional case
in which the evidence weighs heavily against the conviction” in order to overturn
appellant’s conviction. Thompkins, 78 Ohio St.3d at 387. In light of the evidence
presented in this case, we cannot conclude that this is the “exceptional case in which the
evidence weighs heavily against the conviction.” Therefore appellant’s first assignment
of error is not well taken.
III.
SECOND ASSIGNMENT OF ERROR
{¶24} In his second assignment of error, appellant argues that he was denied the
effective assistance of counsel in violation of the Sixth Amendment to the Constitution of
the United States. Appellant sets forth two instances where his trial counsel was
ineffective. The first occurred on cross-examination of Deputy McCune when the deputy
revealed that appellant had an outstanding warrant on the day of June 6, 2011. Appellant
claims a second instance occurred when his counsel failed to mitigate his sentence.
Ross App. No. 12CA3324 10
Standard of Review
{¶25} Criminal defendants have a right to counsel, including a right to the
effective assistance from counsel. See McMann v. Richardson, 397 U.S. 759, 771, fn. 14,
90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-Ohio-
1366, ¶21. To establish constitutionally ineffective assistance of counsel, a defendant
must show (1) that his counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense and deprived him of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139,
694 N.E.2d 916 (1998).
{¶26} “In order to show deficient performance, the defendant must prove that
counsel’s performance fell below an objective level of reasonable representation. To
show prejudice, the defendant must show a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” (Citations omitted.)
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure
to establish either element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,
2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze
both. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a
defendant’s failure to satisfy one of the elements “negates a court’s need to consider the
other.”).
{¶27} When considering whether trial counsel’s representation amounts to
deficient performance, “a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland at 689.
Ross App. No. 12CA3324 11
Thus, “the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. “A properly licensed
attorney is presumed to execute his duties in an ethical and competent manner.” State v.
Taylor, 4th Dist. No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17 Ohio St.3d
98, 100, 17 OBR 219, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden
to show ineffectiveness by demonstrating that counsel’s errors were so serious that he or
she failed to function as the counsel guaranteed by the Sixth Amendment. See State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37
Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).
{¶28} To establish prejudice, a defendant must demonstrate that a reasonable
probability exists that but for counsel’s errors, the result of the trial would have been
different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus (1989). Furthermore,
courts may not simply assume the existence of prejudice, but must require that prejudice
be affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684, 2003-Ohio-
1707, ¶ 22; State v. Tucker, 4th Dist. No. 01CA2592, 2002 WL 507529, *3 (Apr. 2,
2002); State v. Kuntz, 4th Dist. No. 1691, 1992 WL 42774, *2 (Feb. 26, 1992).
Analysis
{¶29} First, appellant claims that his defense counsel should have prevented the
prosecutor from asking Deputy McCune a certain line of questioning. The relative
testimony is as follows, first on direct examination:
Ross App. No. 12CA3324 12
[Prosecutor]: ONCE HE HAD GOTTEN ON THE PHONE AND YOU
WERE TALKING TO HIM, COULD YOU DESCRIBE WHAT YOU
HAD TALKED ABOUT?
[McCune]: I ASKED HIM WHERE HE WAS, HE WOULDN’T
TELL ME EXACTLY WHERE HE WAS, HE SAID HE WAS CLOSE;
NOT FAR AWAY. I ASKED HIM IF HE COULD COME TO THE
RESIDENCE, HE SAID THAT HE WOULD. I TOLD HIM THAT IT
WOULD BE IN HIS BEST INTEREST IF HE DID. HE ASKED IF HE
COULD SAY GOOD-BYE TO HIS GIRLFRIEND WHEN HE
ARRIVED, BEFORE I ARRESTED HIM.
[Prosecutor]: SO HE ASKED YOU IF YOU WOULD LET HIM SAY
GOOD-BYE TO HIS GIRLFRIEND BEFORE HE WAS ARRESTED?
[McCune]: YES.
[Prosecutor]: PRIOR TO HIM MAKING THAT STATEMENT TO
YOU, HAD YOU GIVEN HIM INDICATION TO HIM THAT HE
WOULD BE UNDER ARREST WHEN HE ARRIVED AT HIS
RESIDENCE?
[McCune]: NO, I DID NOT.
***
{¶30} On cross-examination, Deputy McCune gave the following
testimony:
[Counsel]: DEPUTY, I THINK YOU TESTIFIED THAT WHEN
YOU WERE SPEAKING WITH MR. WARREN ON THE PHONE, HE
Ross App. No. 12CA3324 13
SEEMED TO KNOW HE WAS GOING TO BE ARRESTED, IS THAT
CORRECT?
[McCune]: YES, THAT’S THE WAY IT SOUNDED.
[Counsel]: WERE YOU AWARE IF HE HAD WARRANTS OUT OF
ANY OTHER COUNTIES?
[McCune]: NO, I WAS NOT.
[Counsel]: AT SOME POINT IN THE CRUISER, DID HE SAY
ANYTHING TO YOU ABOUT WARRANTS?
[McCune]: NOT THAT I RECALL.
[Counsel]: YOU DON’T RECALL HIM TELLING YOU HE KNEW
HE HAD WARRANTS FROM ANOTHER COUNTY?
[McCune:] NOT THAT I RECALL.
***
[Counsel]: DID YOU EVER RUN A CHECK FOR WARRANTS?
[McCune]: UM, JUST PRIOR TO CHILLICOTHE POLICE
DEPARTMENT ARRIVING. WE WENT AHEAD AND GOT THE
PAPERWORK AND STUFF READY FOR THEM AND THAT’S
WHEN I WAS AWARE THAT HE HAD OUTSTANDING
WARRANTS.
[Counsel]: SO HE DID IN FACT HAVE OTHER WARRANTS
FROM OTHER COUNTIES?
[McCune]: YES, HE DID?
Ross App. No. 12CA3324 14
[Counsel]: IS IT IMPOSSIBLE THAT HE WOULDN’T HAVE
KNOWN THAT?
[McCune]: I CAN NOT SAY THAT.
{¶31} Appellant argues, while his statement to Deputy McCune may have been
admissible under Evidence Rule 801(D)(2), evidence of the warrant was not admissible
and was highly prejudicial. In order to explain the statement, appellant claims that he
was compelled to disclose the prejudicial information regarding his outstanding arrest
warrant. Appellant assigns error for ineffective assistance of counsel for failure to use
proper means of excluding the testimony either by pretrial motion pursuant to Crim.R.
12(c) or by objecting to the prosecutor’s line of questioning.
{¶32} In his appellate brief, appellant admits that his statement to Deputy
McCune may be admissible under Evid.R. 802(B)(2) as an admission by a party. Since he
does not claim the statement to be inadmissible under the hearsay rule, we will not
address it as such. Appellant instead claims his statement is inadmissible under Evid.R.
404(B) and 403(A). Evid.R. 404(B) states: “Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in conformity
therewith.” Evid.R. 403(A) states: “Although relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” First it is important to note, that the
prosecution did not seek to introduce the evidence regarding the outstanding arrest
warrants of the appellant. It was appellant’s trial counsel that opened the door and asked
Deputy McCune questions that revealed the existence of the warrants.
Ross App. No. 12CA3324 15
{¶33} The Third District ruled on a situation similar to this case. In State v.
Fairley, 3rd Dist. No. 05-03-41, 2004-Ohio-2616 ¶ 30, at trial, a jury had heard on three
separate occasions references to the defendant’s outstanding warrants. The Third District
ruled that the statements “did not detail any specific prior criminal activity which would
be prohibited under Evid.R. 404(B).” Id at ¶ 31. Further, the court explained the
statements “did not attempt to show an affinity for crime”; and one disclosure “was made
in response to the questions posed by [defense counsel].”
{¶34} In this case, appellant’s trial counsel elicited the outstanding warrant
testimony; and nothing was revealed about the specific crime charged. There was also no
attempt to show appellant acted in conformity with criminal behavior by introducing the
evidence of an outstanding warrant. Therefore, we do not find that the testimony would
have been prohibited under Evid.R. 404(B). Furthermore, the testimony does not
demonstrate substantial prejudice to appellant to warrant exclusion of the evidence under
Evid.R. 403(A).
{¶35} Looking at the context of this testimony it is clear that appellant’s trial
counsel was using the testimony regarding the warrant as trial strategy. After Deputy
McCune had testified on direct examination that appellant asked her if he could talk to
his girlfriend before being arrested, defense counsel attempted to use the warrant
testimony to demonstrate appellant may have had other reasons to believe he might be
arrested. In proving ineffective assistance of counsel, appellant must overcome the
presumption that counsel’s actions might be trial strategy. We do not find appellant has
effectively demonstrated an ineffective assistance of counsel claim with respect to the
cross-examination of Deputy McCune.
Ross App. No. 12CA3324 16
{¶36} Appellant also argues that his trial counsel’s failure to introduce mitigating
circumstances during the sentencing hearing constitutes ineffective assistance of counsel.
Appellant contends that but for this error, he would have received a lesser sentence.
Appellant, being convicted of a felony of the first degree, faced a sentence of three to
eleven years in prison. R.C. 2929.14(A)(1). At the sentencing hearing, Carrie Mead
gave a victim impact statement. Afterwards counsel for appellant stated:
I think the court is well aware of the facts of the case. We don’t believe
that a ten year sentence, the maximum sentence, would be appropriate
here. My client of course, still maintains his innocence. We will be filing
a notice of appeal on that. We would ask the court to come in
considerably under the maximum sentence.
Appellant declined to add anything further when asked by the Judge. Appellant was
sentenced to eight (8) years in prison.
{¶37} Appellee contends that appellant has failed to establish with reasonable
probability that a lower sentence would have been the result if not for defense counsel’s
failures. We agree. Appellant asserts that his trial counsel should have brought to the
trial court’s attention that he turned himself in to authorities, cooperated with authorities,
and caused no physical harm to person or property, as mitigating factors under R.C.
2929.12(C)(3) & (4). Appellant has not demonstrated the reasonable probability of a
lesser sentence if his trial counsel would have pointed out the mitigating factors.
Appellant received eight years, where the maximum sentence was eleven years.
Therefore, we find that appellant has not effectively proven an ineffective assistance of
counsel claim. Appellant’s second assignment of error is not well taken.
Ross App. No. 12CA3324 17
IV.
THIRD ASSIGNMENT OF ERROR
{¶38} In his final assignment of error, appellant contends that he was denied due
process under the law because he was denied an adequate preservation of the trial court
record. He submits that he has a right to have the proceedings recorded pursuant to
Crim.R. 22; he argues that right was violated because the trial court transcript is missing
parts of the trial. Specifically, the trial transcript is missing cross-examination of Sargent
Tom Cunningham and the entire closing arguments.
Standard of Review
{¶39} “The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing error
by reference to matters in the record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d
197, 199, 400 N.E.2d 384 (1980). When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has nothing
to pass upon; and thus, as to those assigned errors, the court has no choice but to presume
the validity of the lower court's proceedings, and affirm. Id.{¶40} The Ohio Rules of Appellate Procedure provide a remedy that preserves
the right to full review in situations where the record is incomplete. An appellant may
prepare a statement of the evidence or proceedings from the appellant’s own recollection
pursuant to App.R. 9(C), or an agreed statement of the record pursuant to App.R. 9(D).
Appellant states that he attempted to rectify the transcript, but the recording is
unavailable; and there is no sufficient means to do so. “Unfortunately, recording
equipment occasionally malfunctions. The failure of recording equipment in the trial
Ross App. No. 12CA3324 18
court does not result in prejudice per se.” State v. Ward, 4th Dist. No. 03CA2, 2003-
Ohio-5650 ¶ 28 citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978)
syllabus. Accordingly, the appellant must demonstrate prejudice as a result of the faulty
equipment and resulting inadequate record.
Analysis
{¶41} Appellant argues that Sargent Cunningham was the lead investigator in the
case and one of the state’s most important witnesses. He also asserts that as a result of
the inadequate transcript, he cannot show whether his counsel was ineffective during the
missing testimony or closing arguments. An appellant might be prejudiced where
another assignment of error is incapable of review because of the inadequate record. See
State v. Beltowski, 11th Dist. No. 2006-L-032, 2007-Ohio-3372 ¶ 29.
{¶42} In this case, however, appellant merely asserts that this Court is unable to
review the missing transcript to see if his trial counsel may have committed errors.
Appellant does not allege any specific instances of error or misconduct during Sargent
Cunningham’s testimony or during closing arguments. Therefore the second assignment
of error, ineffective assistance of counsel, is not hindered upon review by the transcript
omissions.
{¶43} Appellant’s first assignment of error dealt with the sufficiency and
manifest weight of the evidence. As stated previously, we find that the evidence is
sufficient enough for a reasonable fact finder to find appellant guilty of aggravated
robbery beyond a reasonable doubt. We also determined the verdict is not against the
manifest weight of the evidence. Therefore, the omitted testimony alone does not show
Ross App. No. 12CA3324 19
the appellant was prejudiced. We find appellant’s third assignment of error is not well
taken.
V.
CONCLUSION
{¶44} After reviewing the record and the evidence in this case, we overrule all
appellant’s assignments of error. The jury conviction finding appellant guilty of
Aggravated Robbery is therefore affirmed.
JUDGMENT AFFIRMED.
Ross App. No. 12CA3324 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of the proceedings in that
court. If a stay is continued by this entry, it will terminate at the earliest of the expiration
of the sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate
as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.