State v. Eberhardt ( 2020 )

[Cite as State v. Eberhardt, 2020-Ohio-4124.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2019CA0111
SCOTT E. EBERHARDT, JR :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
2019CR0495
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August18, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY D. BISHOP GLORIA L. SMITH
Prosecutor 670 Meridian Way #188
By: JOSEPH C. SNYDER Westerville, Oh 43082
Assistant Prosecutor
38 S. Park Street
Mansfield, OH 44902
[Cite as State v. Eberhardt, 2020-Ohio-4124.]
Gwin, P.J.
{¶1} Defendant-appellant Scott E. Eberhardt, Jr. [“Eberhardt”] appeals his
conviction and sentence after a jury trial in the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} In September 2018, Eberhardt’s aunt, Susane Malone, was living at
Colonial Hill Trailer Park at 741 Yale Avenue, Lot 2. When she left that address and
started living with her mother, Ms. Malone's son, Michael Kitts, would check on the
property every other day. Ms. Malone still had medicine, money, and electronics in the
home.
{¶3} At some point, Ms. Malone’s car had stopped working. She hired Eberhardt
to repair it. The car, which was un-drivable, was located at the home of Ms. Malone's
mother. Ms. Malone gave Eberhardt her car keys to enable him to work on her car. The
key ring also had a key to her home at Colonial Hill Trailer Park. Ms. Malone did not give
Eberhardt permission to enter her home in the trailer park. The only other people with a
key to the home were her daughter and her son, Michael Kitts.
{¶4} On September 29, 2019, Eberhardt drove his aunt over to her home at the
trailer park so that she could pick up a pair of pants. Eberhardt waited in the car as Ms.
Malone went inside her home. Afterwards, Eberhardt drove his aunt back to her mother's
home. Ms. Malone’s had planned to stay the night at her mother’s home. Eberhardt was
to come over the next day to finish working on Ms. Malone’s car. After dropping off Ms.
Malone at the home of her mother, Eberhardt left with Ms. Malone’s keys, which included
keys to the car and keys to her trailer.
Richland County, Case No. 2019CA0111 3
{¶5} Sometime between 10:00 p.m. and 11:00 p.m. on September 29, 2019, Mr.
Kitts went to check on the home in the trailer park and do laundry. Mr. Kitts’s girlfriend,
Ashley Carter, and two children accompanied him, but remained in the car. Upon his
arrival, Mr. Kitts found the screen door and the main door to Ms. Malone’s home to be
unlocked. When he went inside, Mr. Kitts could see his mother's big screen television was
in the middle of the living room floor, unplugged. When Mr. Kitts had been in the home
two days prior, the television was plugged-in on the T.V. stand.
{¶6} Mr. Kitts then walked to the front bedroom where he observed everything to
be in order. However, when he looked back towards the kitchen doorway, he saw the
shadow of someone in the kitchen. Mr. Kitts yelled out, "Who is it," three or four times;
however, no one responded. He then ran into the kitchen and found Eberhardt. Eberhardt
asked Mr. Kitts where was Ms. Malone. Eberhardt told Kitts that he was supposed to
meet Ms. Malone at the house so she could give him thirty dollars. Eberhardt then asked
Mr. Kitts if he could give him a ride home. Mr. Kitts agreed and then went to tend to his
laundry. Having become suspicious, Mr. Kitts checked the back bedroom and found
dresser drawers open. At that point, Mr. Kitts believed that Eberhardt was trying to steal
from Ms. Malone. Mr. Kitts received a call from Ms. Carter who had been waiting in the
van outside. She said that someone was coming out of the trailer. Ms. Carter told Mr.
Kitts that Eberhardt was outside the house, talking on his phone.
{¶7} When Mr. Kitts walked outside, Eberhardt was gone. Mr. Kitts then called
the police. Deputies from the Richland County Sherriff’s Office arrived and began looking
through the house. They found a book bag that belonged to Mr. Kitts' fifteen-year-old
brother on the floor in the kitchen. This book bag would ordinarily be found in the back-
Richland County, Case No. 2019CA0111 4
bedroom's closet. Mr. Kitts' brother had already moved out of the house and took
everything he wanted with him. Inside the bag was a digital camera. The digital camera
had been on a shelf in the back-bedroom's closet. The deputies found no evidence of
forced entry.
{¶8} Deputy Burt Skeen later interviewed Eberhardt. Eberhardt admitted to
having a key to Ms. Malone's trailer as it was on the key ring with the car key. During the
interview, Eberhardt claimed that he was in the house just to wait on a ride. Later, the
keys to Ms. Malone's car and her trailer were discovered in the yard of her mother's
house.
{¶9} On June 24, 2019, Eberhardt was indicted by the Richland County Grand
Jury with a single-count indictment. Counts One charged Eberhardt with Burglary in
violation of R.C. 2911.12(A)(2)(d), a felony of the second-degree. At the conclusion of
trial, the jury found Eberhardt guilty as charged.
{¶10} Eberhardt received a maximum sentence of eight years in prison after being
found guilty by a jury of burglary in violation of R.C. 2911.12 (A)(2). Eberhardt had
previously been convicted on a prior felony and was serving a prison sentence on that
charge. The trial court imposed the sentence in this case consecutive to the sentence in
the previous case.
Assignments of Error
{¶11} Eberhardt raises Four Assignments of Error,
{¶12} “I. APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
Richland County, Case No. 2019CA0111 5
{¶13} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO DISCHARGE
APPOINTED COUNSEL AND APPOINT NEW COUNSEL.
{¶14} “III. APPELLANT WAS DEPRIVED OF HIS RIGHT A. FAIR TRIAL AND TO
THE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶15} “IV. THE SENTENCE IS CONTRARY TO LAW AND IS NOT SUPPORTED
BY THE RECORD.”
I.
{¶16} In his First Assignment of Error, Eberhardt argues that his conviction for
Burglary is against the manifest weight of the evidence. Eberhardt also claims there is
insufficient evidence to support his conviction.
1. Standard of Appellate Review– Sufficiency of the Evidence.
{¶17} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. __, 133 S. Ct. 2151, 2156, 186 L. Ed. 2d 314 (2013); Hurst v. Florida, 136 S. Ct. 616,
621, 193 L. Ed. 2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St. 3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St. 3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶18} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St. 3d 259, 574
Richland County, Case No. 2019CA0111 6
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St. 3d 89, 102 at n.4,
684 N.E.2d 668 (1997; Walker, at ¶30. “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 of the crime proven beyond a reasonable doubt.” Jenks at
paragraph two of the syllabus. State v. Poutney, 153 Ohio St. 3d 474, 2018-Ohio-22, 97
N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess
the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]
would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”
State v. Murphy, 91 Ohio St. 3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at
paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on
sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by
the trier-of-fact.’” State v. Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283, 855 N.E.2d 48,
¶ 94, quoting State v. Dennis, 79 Ohio St. 3d 421, 430, 683 N.E.2d 1096 (1997); State v.
Montgomery, 148 Ohio St. 3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
1.1. Issue for Appeal: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
of Eberhardt’s guilt on each element of the crime for which he was convicted beyond a
reasonable doubt.
{¶19} To be found guilty of Burglary, the jury would have to find beyond a
reasonable doubt that Eberhardt trespassed in an occupied structure that is a permanent
or temporary habitation when “any person is present or likely to be present" “with purpose
to commit in the habitation any criminal offense.” R.C. 2911.12(A)(2).
Richland County, Case No. 2019CA0111 7
{¶20} Eberhardt first contends that because his aunt, Ms. Malone, gave him her
key ring which contained both her car keys and her house keys and because she did not
tell him that he did not have permission to use the key to her trailer he did not “trespass.”
[Appellant’s brief at 5].
1.1.1. Trespass.
{¶21} A person trespasses when the person knowingly enters or remains on the
land or premises of another without privilege to do so. R.C. 2911.21(A)(1).
{¶22} Ms. Malone testified that Eberhardt was given the key ring so that he could
work on her car. (2T. at 315-316). The car was located at the residence of Ms. Malone’s
mother, which is where Ms. Malone was staying. (2T. at 321). Ms. Malone testified that
Eberhardt did not have permission to go into her trailer. (2T. at 323). She further testified
that she had not agreed to meet Eberhardt at the trailer to give him money. (2T. at 324-
325).
{¶23} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Eberhardt trespassed in Ms. Malone’s trailer. We hold, therefore, that the state met its
burden of production regarding the element of trespass for the crime of burglary and,
accordingly, there was sufficient evidence to support Eberhardt’s conviction.
1.1.2. Habitation and “Likely to be Present.”
{¶24} Eberhardt next argues that the state failed to prove beyond a reasonable
doubt that Ms. Malone’s trailer was a “habitation” and, further, did not prove beyond a
reasonable doubt that someone was likely to be present at the trailer. [Appellant’s brief
at 5-6].
Richland County, Case No. 2019CA0111 8
{¶25} Clearly, Ms. Malone had been living exclusively at the trailer. No evidence
was presented that the trailer was not inhabitable. The trailer still held many of Ms.
Malone’s personal effects and property.
{¶26} In State v. Stevens, this Court held,
A person is present or likely to be present when a consideration of
all the circumstances would seem to justify a logical expectation that a
person could be present. State v. Green (1984), 18 Ohio App. 3d 69, 72.
The knowledge of the defendant concerning habitation is not significant; the
focus is on the probability of actual occupancy at the time of the offense.
State v. Durham (1976), 49 Ohio App. 2d 231, 239.
Thus, evidence that the occupant was living elsewhere, but returned
regularly to make repairs, clean, and remove remaining items of personal
property was sufficient to support a conviction of Aggravated Burglary.
Green, 18 Ohio App. 3d at 72. Evidence that a family occupying a residence
was in and out of the home on the day in question was sufficient to support
a conviction, although no one was present when the crime occurred. State
v. Kilby (1977), 50 Ohio St. 2d 21, at paragraph one of the syllabus.
However, evidence was insufficient to support an aggravated burglary
conviction where one person occupied an apartment, and the crime
occurred during his ordinary working hours. Durham, 49 Ohio App. 2d at
239-40.
5th Dist. Muskingum No. 93-30, 1994 WL 171808(Mar. 22, 1994).
Richland County, Case No. 2019CA0111 9
{¶27} In the case at bar, Mr. Kitts testified that his mother, Ms. Malone, was in the
process of moving out of the trailer. (2T. at 270). Mr. Kitts would go to check on the trailer
every other day. (2T. at 270; 303-304). Ms. Malone had been at the trailer earlier on the
day of the incident. (2T. at 322).
{¶28} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Eberhardt trespassed in a habitation at a time someone was likely to be present. We
hold, therefore, that the state met its burden of production regarding the elements of
habitation and person likely to be present and, accordingly, there was sufficient evidence
to support Eberhardt’s conviction.
1.2. Standard of Appellate Review – Manifest Weight.
{¶29} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St. 3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
Richland County, Case No. 2019CA0111 10
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶30} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St. 3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App. 3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶31} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
Richland County, Case No. 2019CA0111 11
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.
1.2.2. Issue for Appellate Review: Whether the jury clearly lost their way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.
{¶32} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St. 3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St. 3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
Richland County, Case No. 2019CA0111 12
{¶33} In the case at bar, the jury heard the witnesses and viewed the evidence.
The jury saw Mr. Kitts and Ms. Malone subject to cross-examination. The jury heard
Eberhardt’s attorney’s arguments and explanations about the evidence and his actions.
Thus, a rational basis exists in the record for the jury’s decision.
{¶34} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St. 3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find Eberhardt’s conviction is not
against the sufficiency or the manifest weight of the evidence. To the contrary, the jury
appears to have fairly and impartially decided the matters before them. The jury heard
the witnesses, evaluated the evidence, and was convinced of Eberhardt’s guilt. The jury
neither lost their way nor created a miscarriage of justice in convicting Eberhardt of the
offense.
{¶35} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime for which Eberhard was convicted.
{¶36} Eberhardt’s First Assignments of Error is overruled.
II.
{¶37} In his Second Assignment of Error Eberhardt contends the trial court erred
by not allowing him to discharge his court-appointed counsel.
2. Standard of Appellate Review.
{¶38} “‘An indigent defendant has no right to have a particular attorney represent
him and therefore must demonstrate “good cause” to warrant substitution of counsel.’ ”
Richland County, Case No. 2019CA0111 13
State v. Cowans, 87 Ohio St. 3d 68, 72, 717 N.E.2d 298(1999), ¶148, quoting United
States v. Iles, 906 F.2d 1122, 1130(6th Cir. 1990). The trial court may deny the request to
substitute counsel if the complaint is unreasonable. State v. Deal, 17 Ohio St. 2d 17, 244
N.E.2d 742(1969), syllabus. The trial court’s decision is reviewed under an abuse-of-
discretion standard. Cowans, 87 Ohio St. 3d at 73, 717 N.E.2d 298.
{¶39} An abuse of discretion exists where the reasons given by the court for its
action are clearly untenable, legally incorrect, or amount to a denial of justice, or where
the judgment reaches an end or purpose not justified by reason and the evidence.
Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship
of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,
5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.
2.1. Issue for Appellate Review: Whether the trial court’s decision denying
Eberhardt’s request to discharge court-appointed counsel and to assign new counsel is
clearly untenable, legally incorrect, amounted to a denial of justice, or reached an end or
purpose not justified by reason and the evidence.
{¶40} Eberhardt asked the trial court to discharge appointed counsel and to
appoint new counsel on the day of trial, prior to jury selection. The trial court conducted
an inquiry into Eberhardt’s assertions concerning appointed counsel. (1T. at 1-34).
Eberhardt’s attorney denied Eberhardt’s assertions and indicted that he was prepared to
proceed to trial on Eberhard’s behalf,
MR. WATSON: Yes. Thank you very much, Your Honor. May it
please the court. My client has brought up numerous areas of concern, none
of which are true. I have had several jail visits with my client. I have
Richland County, Case No. 2019CA0111 14
explained to him in detail all of the evidence in the case. I will tell you that
in all of the contacts that I have had with my client-- and there have been
multiple, at least four – at no time has my client ever advised me that he
had a witness. He has never communicated that to me in any way, shape
or form. What I had left was the information provided to me by the state, all
of which was shared in detail with my client.
The court would recall, the state was kind enough to have one of its
key witnesses present in the courtroom to ensure my client understood that
that person was going to testify about certain jail phone calls that were
made, and I let my client know that that entire conversation, which was an
attempt to get her to testify in a way that he thought would exonerate him,
wasn't going to happen. And he just would not be heard on that particular
subject.
Now, as for my ability to represent him, Your Honor, I stand ready to
go. I am fully prepared for this trial. I can represent him. He will get a
vigorous defense within the bounds of the law and ethics. But unless there
is something that my client failed to communicate to me, it's out of my
hands.
But as it stands at this moment, he had all of the knowledge that I
had concerning his case. There was an offer. He refused it. There is no
other alternative but then to take it to trial. I understand his theory of the
case. He has explained it to me on more than one occasion. We just happen
Richland County, Case No. 2019CA0111 15
to disagree as to how successful that strategy is going to be. He insists to
try it. So that's why we are here.
1T. at 32. The trial judge noted,
THE COURT: The court would indicate it has gone on at least 8, 9
months at this point in time.
And, Mr. Eberhardt, I did indicate to you that we did discuss this case.
You did not want to take this. We wrapped up the other three portions of
your cases. You refused to take this one.
MR. EBERHARDT: Right.
THE COURT: The evidence at that time was discussehad. [sic.]
Right? So it's not like this hit you blindsided and you don't know what was
presented. Everything was presented to you at that time. It's just the fact
this was pending, hadn't been indicted yet, could have gone on a Bill of
Information. You did not want to go on a Bill of Information on this charge
and you refused it. So, ultimately, that's why we were there. All of the
evidence was bared at that point in time. There was nothing that was left
untouched. All that was left was to get this matter indicted at that point, since
you didn't want the deal.
This is where we are at. Now you came back. Mr. Watson worked
out as good a deal as he possibly could based on that after the indictment.
Again, you were brought in. You didn't want that deal. And Mr. Watson
knows what the evidence is. The court knows what the evidence is. You
Richland County, Case No. 2019CA0111 16
know what the evidence is. And the state knows what the evidence is. It
was discussed during that pretrial.
1T. at 15-16.The trial judge concluded,
THE COURT: All right. We are back on the record in this matter. The
court has had an opportunity to listen to the arraignment that was
conducted. The court will indicate that at no time did the defendant in this
matter ever state that he did not want Mr. Watson. It's on recording. Simply
appointed Mr. Robinson. At no time ever did you say you do not want Mr.
Watson.
Mr. Eberhardt, the court at this time doesn't find your argument for
new counsel persuasive. This matter has been pre-tried. It has been
pending since early February. These were all contemplated. This new case
that we are dealing with today was even included in those discussions. For
you to say that it comes as a surprise afterwards that you did not know what
was coming, is not true. You had an offer. If you had taken everything, I
believe it was 6 (six) years with this case, but you didn't do that. You did not
do that. You rolled the dice. So they proceeded to indict. This is where we
are at.
The court also finds that the last time you played this all of the way
up until the day the jury was brought in. We had to bring the jury in because
you demanded a trial, and then all of a sudden you decided, wait, let's work
out a deal. We did that the last time.
Richland County, Case No. 2019CA0111 17
Now we have another jury and you are trying to prolong it once again
to get some kind of a deal on the table. You have known this deal all along.
You indicated you didn't. It went from a combined 6 (six) years, the court
will note for the record, on all cases, including this one, to you pleading to
the other case, at which time this case now once it was indicted went to 4
(four) years on this case. You refused that deal. You were set for trial. At no
time along that process did you ever request new counsel until this morning.
This morning. The day of trial. When a jury is here now. The court is not
going to grant your request for new counsel.
1T. at 35-36.
{¶41} The right to competent counsel does not require that a criminal defendant
develop and share a "meaningful relationship" with his attorney. Morris v. Slappy, 461
U.S. 1, 13, 103 S. Ct. 1610, 1617, 75 L.Ed.2d 610(9183); State v. Blankenship, 102 Ohio
App.3d 534, 657 N.E.2d 559; State v. Burroughs, 5th Dist. No. 04CAC03018, 2004-Ohio-
4769 at ¶ 11.
{¶42} In State v. Cowans, 87 Ohio St. 3d 68, 1999-Ohio-250, 717 N.E.2d
298(1999) the Court noted: “[e]ven if counsel had explored plea options based on a belief
that Cowans might be guilty, counsel's belief in their client's guilt is not good cause for
substitution. But disagreements—such as disagreement over the merits of a plea offer—
“‘between the attorney and client over trial tactics or approach * * * do not warrant a
substitution of counsel.’ ” State v. Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283, 855
N.E.2d 48, ¶ 150, quoting State v. Evans, 153 Ohio App. 3d 226, 2003-Ohio-3475, 792
N.E.2d 757, ¶ 32 (7th Dist.). To the contrary, counsel “‘has a duty to be candid’ ” and “‘to
Richland County, Case No. 2019CA0111 18
give the accused an honest appraisal of his case.’ ” Id. at ¶ 151, quoting Brown v. United
States, 264 F.2d 363, 369 (D.C.Cir.1959). State v. McKelton, 148 Ohio St. 3d 261, 2016-
Ohio-5735, 70 N.E.3d 508, ¶ 71. . “‘A lawyer has a duty to give the accused an honest
appraisal of his case. * * * Counsel has a duty to be candid; he has no duty to be optimistic
when the facts do not warrant optimism.'” Brown v. United States, 264 F.2d 363, 369
(D.C. Cir. 1959) (en banc) (Berger, J. concurring), quoted in McKee v. Harris, 649 F.2d
927, 932(2nd Cir 1981). “‘If the rule were otherwise, appointed counsel could be replaced
for doing little more than giving their clients honest advice.'” McKee, 649 F.2d at 932,
quoting McKee v. Harris (S.D.N.Y.1980), 485 F. Supp. 866, 869.
{¶43} In the case at bar, it appears that Eberhardt’s dissatisfaction with his
attorney stems in considerable part from counsel’s failure to paint a rosy picture
concerning Eberhardt’s prospects for complete exoneration after a jury trial.
{¶44} In a similar vein it has been held that hostility, tension, or personal conflicts
between an attorney and a client that do not interfere with the preparation or presentation
of a competent defense are insufficient to justify a change in appointed counsel. See State
v. Henness, 79 Ohio St. 3d 53, 65-66, 679 N.E.2d 686(1997). Furthermore, "[m]erely
because appointed counsel's trial tactics or approach may vary from that which appellant
views as prudent is not sufficient to warrant the substitution of counsel." State v. Glasure,
132 Ohio App. 3d 227, 239, 724 N.E.2d 1165(1999); State v. Evans, 153 Ohio App. 3d
226, 235-36, 2003-Ohio-3475 at ¶31, 792 N.E.2d 757,764; State v. Newland, 4th Dist.
No. 02CA2666, 2003-Ohio-3230, ¶11. A defendant has no constitutional right to
determine trial tactics and strategy of counsel. State v. Cowans, 87 Ohio St. 3d 68, 72,
717 N.E.2d 298(1999); State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, 842 N.E.2d
Richland County, Case No. 2019CA0111 19
996, ¶ 150; State v. Donkers, 170 Ohio App. 3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶
183. Rather, decisions about viable defenses are the exclusive domain of defense
counsel after consulting with the defendant. Id. When there is no demonstration that
counsel failed to research the facts or the law or that counsel was ignorant of a crucial
defense, a reviewing court defers to counsel's judgment in the matter. State v. Clayton,
62 Ohio St. 2d 45, 49, 402 N.E.2d 1189(1980), citing People v. Miller 7 Cal. 3d 562, 573-
574, 102 Cal. Rptr. 841, 498 P.2d 1089(1972); State v. Wiley, 10th Dist. No. 03AP-340,
2004- Ohio-1008, ¶ 21.
{¶45} In the context of reviewing a claim by the defendant that the trial court
abused its discretion by overruling the defendant’s request to discharge court appointed
counsel and to substitute new counsel for the defendant the courts have taken the
approach that the defendant must show a complete breakdown in communication in order
to warrant a reversal of the trial court’s decision. Eberhardt has not established that such
a breakdown occurred to warrant appointment of new counsel. Indeed, our review of the
record indicates Eberhardt’s counsel was thoroughly prepared. In the case at bar,
defense counsel apparently gave Eberhardt his honest appraisal of his case, which does
not prove bias or lack of communication. Eberhardt has failed to establish a breakdown
in attorney-client relationship of such magnitude as require the trial court to discharge his
court-appointed attorney.
{¶46} In the case at bar, the trial court did not abuse his discretion by failing to
discharge court appointed counsel and appoint Eberhardt new trial counsel. The court
conducted a hearing and Eberhardt’s appointed counsel assured the court that he was
prepared to proceed with the scheduled jury trial. The trial court’s decision was not clearly
Richland County, Case No. 2019CA0111 20
untenable or legally incorrect, did not amount to a denial of justice, or reached an end or
purpose not justified by reason and the evidence.
{¶47} Eberhardt’s Second Assignment of Error is overruled.
III.
{¶48} In his Third Assignment of Error, Eberhardt argues that he was denied
effective assistance of counsel. Specifically, Eberhardt contends that his trial attorney
was ineffective in failing to subpoena witnesses, failing to make timely evidentiary
objections, and by opening the door for the prosecution to present evidence that was
prejudicial and not relevant.
3. Standard of Appellate Review.
{¶49} To prevail on a Sixth Amendment claim alleging ineffective assistance of
counsel, a defendant must show that his counsel’s performance was deficient and that
his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 694 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficiency, a defendant must
show that “counsel’s representation fell below an objective standard of reasonableness.”
Id., at 688, 104 S. Ct. 2052. And to establish prejudice, a defendant must show “that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id., at 694, 104 S. Ct. 2052. Andtus v. Texas,
590 U.S. __, 140 S. Ct. 1875, 1881 (June 15, 2020).
3.1 Failure to subpoena witnesses.
{¶50} Eberhardt first indicated on the day of trial, that he wished to call his
girlfriend, Toni Thompson, and that she would testify that he walked to Ms. Malone's
trailer. 1T. at 8. Eberhardt fails to elucidate or proved any cognizant rationale concerning
Richland County, Case No. 2019CA0111 21
how his manner of arrival at the trailer on the day in question would have changed the
outcome of his trial.
{¶51} On the second day of trial, Eberhardt stated that he wanted his mother to
testify. 2T. at 410. Eberhardt contends that his mother would testify that Ms. Malone
was no longer living at her trailer on the day of the incident, and that she gave Eberhardt
permission to be inside her trailer on that day. 2T. at 414.
{¶52} In State v. O’Brien, the homeowner was temporarily living in a domestic
violence shelter at the time of the incident. 5th Dist. Stark No. 2004CA00370, 2005-Ohio-
3765, ¶16. While she was at the shelter on the day of the offense, her furniture and
personal belongings remained in the house. In O’Brien this court observed,
Ms. Brown had left all of her belongings, secured the house, and
turned off the gas, but it was summer time. T. at 53–55. Although she had
been in the shelter for two weeks, she went back to her home to retrieve
some items. T. at 56–57. She always intended to return once her ex-
husband was arrested. T. at 61, 64. Ms. Brown’s children attended school
within a fifteen-minute walking distance from the house however, as
previously noted, it was summer time. T. at 62. Mr. Brown stated the only
time she would not have returned to her home would have been at darkness
because of her fear of her ex-husband. T. at 63–64.
From the totality of the evidence, we find the facts are sufficient to
meet the burden of “likely to be present.” In State v. Holt (1969), 17 Ohio
St.2d 81, 86, 246 N.E.2d 365, the Supreme Court of Ohio has defined
“likely” as follows:
Richland County, Case No. 2019CA0111 22
“In the case of Robards v. Kansas City Public Service Co., 238
Mo.App. 165, 170, 177 S.W.2d 709, 712, it is said in the opinion:
“‘* * * that the word “likely” is not equivalent to the words “reasonably
certain”; that “reasonably certain” is a stronger expression than the word
“likely.”’
“It has also been held that in law ‘likely’ means something less than
‘probable.’ Conchin v. El Paso & Southwestern Rd. Co., 13 Ariz. 259, 264,
108 P. 260, 262, 28 L.R.A.,N.S., 88, 91, and Blaine v. State, 196 Miss. 603,
609, 17 So. 2d 549, 550. Compare Howard v. State, 108 Ala. 571, 577, 18
So. 813, 816, where it was held that charges using the words ‘likely’ and
‘likelihood’ as a substitute for ‘probable’ and ‘probability’ were properly
refused to avoid misleading and confusing the jury.”
Further, in State v. Green (1984), 18 Ohio App. 3d 69, 72, 480 N.E.2d
1128, our brethren from the Tenth District found a person “is likely to be
present when a consideration of all the circumstances would seem to justify
a legal expectation that a person could be present.”
It was likely that Ms. Brown would return to her home to retrieve items
as she had done before or she would return permanently after the
apprehension of her ex-husband.
5th Dist. Stark No. 2004CA00370, 2005-Ohio-3765, ¶16-¶22.
{¶53} Similarly, in State v. Hudson, the Court held,
In this case, Lucy testified that she began moving from the upper
apartment to the lower apartment in December 2016, and that she was
Richland County, Case No. 2019CA0111 23
residing in the lower apartment on January 8, 2017, the day of the burglary.
Lucy worked during the day as a provider of home healthcare, and she
returned to her residence around 8:45 p.m. At that time, Lucy found
indications that a person was in her apartment, namely that the deadbolt to
the front door was locked. When she entered the apartment an hour later,
she found Hudson asleep on her couch in the front living room. The State’s
evidence was sufficient to establish that Hudson trespassed in Lucy’s
residence at a time when a person (other than Hudson or an accomplice)
was present and/or was likely to be present. The fact that Hudson may
have subjectively and perhaps reasonably believed, based on the condition
of the property, that the lower apartment was abandoned was of no legal
import.
2nd Dist. No. 27561, 2018-Ohio-423, ¶19. In State v. Hibbard, the court found sufficient
evidence that a person was likely to be present where a homeowner was away,
However, McDullin testified that she had arranged for someone to
stop in regularly to check on their cat in the family’s absence, and that
person discovered the break-in. This evidence is sufficient to support the
“likely to be present” element of appellant’s burglary conviction on this
count.
12th Dist. Butler Nos. CA2001-12-276, CA2001-12-286, 2003-Ohio-707, ¶13.
{¶54} In the case at bar, Ms. Malone had gone to the trailer on the day of the
incident to retrieve a pair of pants. Inside the trailer was her clothing, medicine, television
and other electronic devices. Mr. Kitts regularly checked on his mother’s trailer. Eberhardt
Richland County, Case No. 2019CA0111 24
did not answer or present himself when Mr. Kitts called out inside the trailer. Eberhardt
asked Mr. Kitts for a ride, then walked outside and disappeared.
{¶55} “Generally, counsel’s decision whether to call a witness falls within the
rubric of trial strategy and will not be second-guessed by a reviewing court.” State v.
Treesh, 90 Ohio St. 3d 460, 490, 739 N.E.2d 749(2001); State v. Hughbanks, 99 Ohio
St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, ¶ 82. Eberhardt’s claim with respect to
both performance and prejudice rests on mere speculation, and “[s]uch speculation is
insufficient to establish ineffective assistance.” State v. Short, 129 Ohio St. 3d 360, 2011–
Ohio–3641, 952 N.E.2d 1121, ¶ 119, citing State v. Perez, 124 Ohio St. 3d 122, 2009–
Ohio–6179, 920 N.E.2d 104, ¶ 217; State v. Were, 118 Ohio St. 3d 448, 2008–Ohio–2762,
890 N.E.2d 263, ¶ 219; State v. Elmore, 111 Ohio St. 3d 515, 2006–Ohio–6207, 857
N.E.2d 547, ¶ 121. We already found in our disposition of Eberhardt’s First Assignment
of Error that his convictions are not against the manifest weight and sufficiency of the
evidence.
{¶56} We are unwilling to speculate the outcome of the trial would have been
different but for failing to call Eberhardt’s girlfriend or his mother as a witness, and
therefore find Eberhardt did not receive ineffective assistance of counsel. See, State v.
Ducker, 5th Dist. Stark No. 2012CA00193, 2013–Ohio–3658; State v. Poulton, 5th Dist.
Muskingum No. CT2013–0030, 2014–Ohio–1198, appeal not allowed, 2014–Ohio–2487,
139 Ohio St. 3d 1420, 10 N.E.3d 739; State v. Burnett, 5th Dist. Stark No. 2017CA0005,
2017-Ohio-7522, ¶28.
3.2. Failing to properly object.
Richland County, Case No. 2019CA0111 25
{¶57} Eberhardt next argues that his trial attorney failed to properly object when
the prosecutor elicited testimony from Ms. Malone, Ms. Carter, and Detective Skeen
about statements Mr. Kitts had made to each of them. [Appellant’s Brief at 12-13].
Eberhardt also contends that his trial counsel failed to object to prejudicial evidence
elicited from Detective Skeen concerning Ms. Malone’s fears about the burglary.
[Appellant’s Brief at 13-14].
{¶58} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’” State v. Fears, 86 Ohio St. 3d 329, 347, 715 N.E.2d
136(1999), quoting State v. Holloway, 38 Ohio St. 3d 239, 244, 527 N.E.2d 831(1988). A
defendant must also show that he was materially prejudiced by the failure to object.
Holloway, 38 Ohio St. 3d at 244, 527 N.E.2d 831. Accord, State v. Hale, 119 Ohio St. 3d
118, 2008–Ohio–3426, 892 N.E.2d 864, ¶ 233.
{¶59} A defendant has no constitutional right to determine trial tactics and
strategy of counsel. State v. Cowans, 87 Ohio St. 3d 68, 72, 717 N.E.2d 298 (1999); State
v. Conway, 108 Ohio St. 3d 214, 2006–Ohio–791, 842 N.E.2d 996, ¶ 150; State v.
Donkers, 170 Ohio App. 3d 509, 2007–Ohio–1557, 867 N.E.2d 903(11th Dist.), ¶ 183.
Rather, decisions about viable defenses are the exclusive domain of defense counsel
after consulting with the defendant. Id. Even if the wisdom of an approach is
questionable, “debatable trial tactics” do not constitute ineffective assistance of counsel.
Id. “[P]oor tactics of experienced counsel, however, even with disastrous result, may
hardly be considered lack of due process * * *.” State v. Clayton, 62 Ohio St. 2d 45, 48,
402 N.E.2d 1189(1980)(quoting United States v. Denno, 313 F.2d 364(2nd Cir.1963),
certiorari denied 372 U.S. 978, 83 S. Ct. 1112, 10 L. Ed. 2d 143. In addition, to fairly assess
Richland County, Case No. 2019CA0111 26
counsel’s performance, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
{¶60} Crim. R. 52(A) defines harmless error, “Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” Before
constitutional error can be considered harmless, we must be able to “declare a belief that
it was harmless beyond a reasonable doubt.” Chapman v. California 386 U.S. 18, 24, 87
S. Ct. 824, 17 L.Ed.2d 705(1967). Where there is no reasonable possibility that unlawful
testimony contributed to a conviction, the error is harmless and therefore will not be
grounds for reversal. State v. Lytle, 48 Ohio St. 2d 391, 358 N.E.2d 623(1976), paragraph
three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910, 98 S. Ct.
3135, 57 L.Ed.2d 1154(1978).
{¶61} Mr. Kitts testified and was subject to cross-examination. Accordingly, the
testimony elicited from the other witnesses was cumulative. Trial counsel may have made
a tactical decision not to object and call further attention to the statements. As the
substance of the statements was admissible and testified to by Mr. Kitts we find there is
no reasonable possibility that this testimony as elicited from the other witnesses
contributed to Eberhardt’s conviction, and any error, therefore is harmless beyond a
reasonable doubt.
{¶62} Testimony concerning Ms. Malone’s fears did not implicate Eberhardt in the
crime. It was not so highly inflammatory and was not directed to the passions and
prejudice of the jury. We find it extremely speculative that the jury abandoned their oaths
and their integrity and found Eberhardt guilty of the crime because of the testimony
Richland County, Case No. 2019CA0111 27
concerning Ms. Malone’s fears. As the substance of the testimony concerning Ms.
Malone’s fears, we find there is no reasonable possibility that this testimony contributed
to Eberhardt’s conviction, and any error, therefore is harmless beyond a reasonable
doubt.
3.3. Evidence that Eberhardt had been arrested and was in jail for a different
offense.
{¶63} Eberhardt next argues that his trial attorney was ineffective in allowing the
jury to hear that Eberhardt had been arrested and was in jail for a different burglary
offense.
{¶64} On cross-examination of Detective Skeen, Eberhardt’s attorney brought out
the fact that Eberhardt had been arrested in early November 2018, that he had not been
arrested the day of the burglary in this case, and further had not been arrested by the
Richland County Sheriff’s office. 2T. at 402. The reason for the arrest was not mentioned.
{¶65} Debatable strategic and tactical decisions may not form the basis of a claim
for ineffective assistance of counsel. State v. Phillips, 74 Ohio St. 3d 72, 85, 1995–Ohio–
171. Even if the wisdom of an approach is questionable, “debatable trial tactics” do not
constitute ineffective assistance of counsel. Id. “[P]oor tactics of experienced counsel,
however, even with disastrous result, may hardly be considered lack of due process * *
*.” State v. Clayton, 62 Ohio St. 2d 45, 48, 402 N.E.2d 1189(1980) (quoting United States
v. Denno, 313 F.2d 364(2nd Cir.1963), certiorari denied 372 U.S. 978, 83 S. Ct. 1112, 10
L. Ed. 2d 143.
{¶66} Testimony of Eberhardt’s arrest and jailing on other unspecified charges
was not so highly inflammatory and was not directed to the passions and prejudice of the
Richland County, Case No. 2019CA0111 28
jury. It is highly speculative to conclude that the jury abandoned their oaths and their
integrity and found Eberhardt guilty of the crime because of this testimony. We find there
is no reasonable possibility that this testimony contributed to Eberhardt’s conviction, and
any error, therefore is harmless beyond a reasonable doubt.
3.4. Improper comments in closing argument1.
{¶67} Eberhardt next contends that the prosecutor argued to the jury that the key
to Ms. Malone’s trailer was “stolen.” 2T. at 475-476. Although the evidence is that Ms.
Malone had given a key ring to Eberhardt that contained her car key and the key to her
trailer, the evidence also demonstrates that Eberhardt did not give the key ring back to
Ms. Malone. 1T. at 323. Ms. Malone further testified that Eberhard’s grandmother found
the keys in the yard of Ms. Malone’s mother’s house. 1T. at 323.
If any misconduct occurred, the court must consider the effect it had
on the jury “in the context of the entire trial.” State v. Keenan, 66 Ohio St. 3d
402, 410, 613 N.E.2d 203 (1993). With regard to each allegation of
misconduct, we must determine whether the conduct was “improper, and, if
so, whether [it] prejudicially affected substantial rights of the defendant.”
State v. Smith, 14 Ohio St. 3d 13, 14, 470 N.E.2d 883 (1984). “[A]
defendant's substantial rights cannot be prejudiced when the remaining
evidence, standing alone, is so overwhelming that it constitutes defendant's
guilt, and the outcome of the case would have been the same regardless of
evidence admitted erroneously.” State v. Hicks, 194 Ohio App. 3d 743,
1 Eberhardt raises this claim of prosecutorial misconduct under his Assignment of Error contending
that he received ineffective assistance of counsel. See, App.R. 16.
Richland County, Case No. 2019CA0111 29
2011-Ohio-3578, 957 N.E.2d 866, ¶ 30 (8th Dist.2011), citing State v.
Williams, 38 Ohio St. 3d 346, 349–350, 528 N.E.2d 910 (1988).
State v. Mammone, 139 Ohio St. 3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 109.
In the case at bar, we find that the trial judge issued thorough instructions that
included informing the jury that the court instructs on the law, not the attorneys. 2T. at
421; 476-477. The trial court further instructed the jury that the statements of counsel are
not to be considered as evidence. Id.
{¶68} Looking at the prosecutor’s statement in the larger context of the trial, we
find the prosecutor’s statement did not prejudicially affect Eberhardt’s substantial due
process rights. We find there is no reasonable possibility that the statements by the
prosecutor contributed to Eberhardt’s conviction, and any error, therefore is harmless
beyond a reasonable doubt.
3.5. Comments on Eberhardt’s right to not testify during trial2.
{¶69} Eberhardt argues the prosecutor impermissibly commented on the fact that
Eberhardt did not testify. As his sole support for this argument, Eberhardt cites the
following,
And I agree there are a lot of questions. But not quite the same
questions. I would love to know what drives a man to take from his aunt, to
fix her car, tear her car apart and then not to repair it. I would love to know
what makes a person go into somebody else's house and gather goods that
are not theirs.
2T. at 424.
2 See Note 1, supra.
Richland County, Case No. 2019CA0111 30
{¶70} A prosecutor is entitled to a certain degree of latitude in closing arguments.
State v. Liberatore, 69 Ohio St. 2d 583, 589, 433 N.E.2d 561(1982). Thus, it falls within
the sound discretion of the trial court to determine the propriety of these arguments. State
v. Maurer, 15 Ohio St. 3d 239, 269, 473 N.E.2d 768(1984). A conviction will be reversed
only where it is clear beyond a reasonable doubt that, absent the prosecutor’s comments,
the jury would not have found the defendant guilty. State v. Benge, 75 Ohio St. 3d 136,
141, 1996-Ohio-227. Furthermore, “[i]solated comments by a prosecutor are not to be
taken out of context and given their most damaging meaning.” Donnelly v. DeChristoforo,
416 U.S. 637, 647, 94 S. Ct. 1868, 40 L.Ed.2d 431(1974).
{¶71} The state may comment upon a defendant’s failure to offer evidence in
support of its case. State v. Collins, 89 Ohio St. 3d 524, 733 N.E.2d 1118(2000). “Such
comments do not imply that the burden of proof has shifted to the defense, nor do they
necessarily constitute a penalty on the defendant’s exercise of his Fifth Amendment right
to remain silent.” Id. at 528-29, 733 N.E.2d 1118. The state must refrain from
commenting on a decision not to testify, but the state may challenge the weight of
evidence offered by the defense in support of its theory of the case. Id. The state does
not have a duty to disprove every possible circumstance suggested by the defendant. Id.
{¶72} “[T]he fact that one of the parties fails to call a witness who has some
knowledge of the matter under investigation may be commented upon.” State v. Petro,
148 Ohio St. 473, 498, 162, 76 N.E.2d 355, 367(1948); State v. Champion, 109 Ohio St.
281, 289-290, 142 N.E. 141, 143-144(1924). State v. D’Ambrosio, 67 Ohio St. 3d 185,
193, 1993-Ohio-170, 616 N.E.2d 909,916(1993).
Richland County, Case No. 2019CA0111 31
{¶73} Eberhardt mischaracterizes the prosecutor’s statement. The prosecutor
was commenting on the lack of evidence and not on the fact that Eberhardt had not
testified. The prosecutor’s comments focused on what was presented in evidence.
Further, the trial court instructed the jury that Eberhardt had a constitutional right not to
testify and the jury must not consider the fact that he did not testify for any purpose. 2T.
at 423. We presume that the jury followed the court’s instructions. State v. Loza, 71 Ohio
St.3d 61, 79, 641 N.E.2d 1082(1994).
{¶74} We find that the language used by the prosecutor in this case is not such
that the jury would “naturally and necessarily” take it as comment on the failure of the
accused to testify, and thus fails the test set forth in State v. Cooper, 52 Ohio St. 2d 163,
370 N.E.2d 725(1977), vacated on other grounds 438 U.S. 911, 98 S. Ct. 3137, 57 L.Ed.2d
1157(1978). State v. Williams, 23 Ohio St. 3d 16, 20, 490 N.E.2d 906, 911(1986).
3.6. Conclusion.
{¶75} For all the forgoing reasons, Eberhardt’s Third Assignment of Error is
overruled.
IV.
{¶76} In his Fourth Assignment of Error, Eberhardt contends that his eight- year
sentence is contrary to law and is not supported by the record. Specifically, Eberhardt
contends that although his sentence does not exceed the authorized statutory range, the
trial court did not comply with the purposes and principles of felony sentencing as set
forth in R.C. 2929.11 and R.C. 2929.12. Therefore, the sentence is contrary to law and
the case should be remanded back to the sentencing court.
4. Standard of Appellate Review.
Richland County, Case No. 2019CA0111 32
{¶77} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
{¶78} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an
appellate court may only review individual felony sentences under R.C. 2929.11 and R.C.
2929.12, while R.C. 2953.08(G)(2) is the exclusive means of appellate review of
consecutive felony sentences. ___ Ohio St.3d ___, 2019-Ohio-4761, ¶16-18; State v.
Anthony, 11th Dist. Lake No. 2019-L-045, 2019-Ohio-5410, ¶60.
{¶79} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly find
that either the record does not support the sentencing court’s findings under R.C.
2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is
otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St. 3d 209, 2014–Ohio–
3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶16.
{¶80} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
4.1. R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.
Richland County, Case No. 2019CA0111 33
{¶81} A trial court’s imposition of a maximum prison term for a felony conviction
is not contrary to law as long as the sentence is within the statutory range for the offense,
and the court considers both the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.
Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16; State v.
Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶16.
{¶82} R.C. 2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing, which are (1) to protect the
public from future crime by the offender and others, and (2) to punish the offender using
the minimum sanctions that the court determines will accomplish those purposes.
Further, the sentence imposed shall be “commensurate with and not demeaning to the
seriousness of the offender’s conduct and its impact on the victim, and consistent with
sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).
{¶83} R.C. 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12 is a
guidance statute that sets forth the seriousness and recidivism criteria that a trial court
“shall consider” in fashioning a felony sentence. Subsections (B) and (C) establish the
factors indicating whether the offender's conduct is more serious or less serious than
conduct normally constituting the offense. These factors include the physical or mental
injury suffered by the victim due to the age of the victim; the physical, psychological, or
economic harm suffered by the victim; whether the offender’s relationship with the victim
Richland County, Case No. 2019CA0111 34
facilitated the offense; the defendant’s prior criminal record; whether the defendant was
under a court sanction at the time of the offense; whether the defendant shows any
remorse; and any other relevant factors. R.C. 2929.12(B). The court must also consider
any factors indicating the offender’s conduct is less serious than conduct normally
constituting the offense, including any mitigating factors. R.C. 2929.12(C). Subsections
(D) and (E) contain the factors bearing on whether the offender is likely or not likely to
commit future crimes.
{¶84} In State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d 124,
the court discussed the effect of the State v. Foster, 109 Ohio St. 3d 1, 2006–Ohio–856,
845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. 2929.14, holding that “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.” Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See
also, State v. Payne, 114 Ohio St. 3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.
{¶85} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶
13, see also State v. Mathis, 109 Ohio St. 3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v.
Firouzmandi supra at ¶ 29.
Richland County, Case No. 2019CA0111 35
{¶86} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,
4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts
are still required to consider the general guidance factors in their sentencing decisions.
{¶87} There is no requirement in R.C. 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App. 3d 428, 431(4th Dist. 1995); State
v. Gant, 7th Dist. No. 04 MA 252, 2006–Ohio–1469, at ¶ 60 (nothing in R.C. 2929.12 or
the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth
its findings), citing State v. Cyrus, 63 Ohio St. 3d 164, 166, 586 N.E.2d 94(1992); State v.
Hughes, 6th Dist. No. WD–05–024, 2005–Ohio–6405, ¶ 10 (trial court was not required
to address each R.C. 2929.12 factor individually and make a finding as to whether it was
applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–Ohio–1342, ¶ 19
(“... R.C. 2929.12 does not require specific language or specific findings on the record in
order to show that the trial court considered the applicable seriousness and recidivism
factors”) (citations omitted); State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-
8996, ¶23. In State v. Bump, this Court observed,
The failure to indicate at the sentencing hearing the court has
considered the factors in R.C. 2929.11 and 2929.12 does not automatically
require reversal. State v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–
5819, ¶ 8. “When the trial court does not put on the record its consideration
of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper
Richland County, Case No. 2019CA0111 36
consideration to those statutes.” Id., citing Kalish at ¶ 18, fn. 4. “The Code
does not specify that the sentencing judge must use specific language or
make specific findings on the record in order to evince the requisite
consideration of the applicable seriousness and recidivism factors.” State
v. Arnett, 88 Ohio St. 3d 208, 215, 2000–Ohio–302.
5th Dist. Ashland No. 11-COA-028, 2012-Ohio-337, ¶12.
{¶88} In the case at bar, the trial court noted the following,
THE COURT: You have done these crimes. You have done these
crimes. It goes back. As a juvenile: Sexual imposition, four counts, along
with receiving stolen property. You were sent to the Department of Youth
Services for 18 (eighteen) months, 6 (six) months on receiving stolen
property. Shortly thereafter you were also charged with felony burglary as
a juvenile, and you had a probation violation, once again delivered to the
Department of Youth Services.
Mr. Eberhardt, again, as an adult, you have a burglary, a fourth
degree felony out of this county. You have an aggravated robbery, an
aggravated burglary. You have a weapon while under disability. You had
another aggravated robbery, a firearm specification, two counts. One was
dismissed in order to plea. You did a substantial time in prison.
Again you had a burglary, a theft, improperly handling a firearm in a
motor vehicle, a failure to appear, a felony aggravated burglary.
And in this court just last, well, earlier this year, you had a possession
of cocaine, a burglary, a theft, endangering children and an escape. We
Richland County, Case No. 2019CA0111 37
sat through those pretrials of all of the three cases that I just indicated, the
last three: burglary, possession of cocaine, the escape; and with this case
contemplated, you were offered 6 (six) years flat. You refused to take this
burglary charge. And they were not even going to ask to have the Post
Release Control time imposed. You were on Post Release Control when
you committed those three crimes along with this. That's four felonies while
on Post Release Control.
You haven't behaved once. You have probation violations. You
violated on you PRC, committing new crimes. And all of this time you are
asking the court to feel sorry for you, not once did I hear an apology to the
victim in this case, not once. Not once did you say, I am sorry for victimizing
my aunt; not, I'm sorry I had a drug addiction and I took advantage of you.
Not once did I hear, I am sorry. You want the court to show mercy on you,
yet you show no mercy on your victim.
2T. at 501-503, emphasis added.
{¶89} Accordingly, the trial court considered the purposes and principles of
sentencing [R.C. 2929.11] as well as the factors that the court must consider when
determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation
to state reasons to support its findings.
{¶90} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Furthermore, the record reflects that the trial court
considered the purposes and principles of sentencing and the seriousness and recidivism
Richland County, Case No. 2019CA0111 38
factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code. While
Eberhardt may disagree with the weight given to these factors by the trial judge,
Eberhardt’s sentence was within the applicable statutory range and therefore, we have
no basis for concluding that it is contrary to law.
{¶91} Eberhardt has failed to clearly and convincingly show that the trial court
failed to consider the principles of felony sentencing, or that the maximum sentence is
otherwise contrary to law.
4.2 Consecutive sentences.
{¶92} Eberhardt further argues that the record does not support running the
sentence in the present case consecutively to a sentence he is already serving.
{¶93} As the Ohio Supreme Court noted in State v. Gwynne, ___ Ohio St.3d ___,
2019-Ohio-4761,
Because R.C. 2953.08(G)(2)(a) specifically mentions a sentencing
judge’s findings made under R.C. 2929.14(C)(4) as falling within a court of
appeals’ review, the General Assembly plainly intended R.C.
2953.08(G)(2)(a) to be the exclusive means of appellate review of
consecutive sentences. See State v. Vanzandt, 142 Ohio St. 3d 223, 2015-
Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative
intent from the plain language of a statute”).
While R.C. 2953.08(G)(2)(a) clearly applies to consecutive-
sentencing review, R.C. 2929.11 and 2929.12 both clearly apply only to
individual sentences.
2019-Ohio-4761, ¶¶16-17(emphasis in original).
Richland County, Case No. 2019CA0111 39
{¶94} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, ¶37. Otherwise, the imposition of consecutive sentences is
contrary to law. See Id. The trial court is not required “to give a talismanic incantation of
the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.” Id.
4.2.1. ISSUE FOR APPEAL: Whether the trial court properly imposed consecutive
sentences in Eberhardt’s case.
{¶95} R.C. 2929.14(C)(4) provides,
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
Richland County, Case No. 2019CA0111 40
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶96} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post release control for a prior offense; (b) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the harm caused by two
or more of the offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct would adequately reflect the
seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶97} In this case, the record does support a conclusion that the trial court made
all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences.
Richland County, Case No. 2019CA0111 41
R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public.
{¶98} In the case at bar, the trial court made this finding on the record and in its
sentencing entry.
R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
{¶99} The trial court found that Eberhardt committed the offense in the case at bar
while on Post Release Control. The trial court made this finding on the record and in its
sentencing entry
R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were committed
as part of one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct.
{¶100} In the case at bar, the trial court made this finding on the record and in its
sentencing entry.
4.2.2. ISSUE FOR APPEAL: Whether the trial court’s decision to impose
consecutive sentences in Eberhardt’s case is supported by the record.
Richland County, Case No. 2019CA0111 42
{¶101} According to the Ohio Supreme Court, “the record must contain a basis
upon which a reviewing court can determine that the trial court made the findings required
by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, ¶28. “[A]s
long as the reviewing court can discern that the trial court engaged in the correct analysis
and can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶29. The plurality of the Ohio Supreme Court in
Gwynne held that appellate courts may not review consecutive sentences for compliance
with R.C. 2929.11 and R.C. 2929.12. See, 2019-Ohio- 4761, ¶18.
{¶102} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Further, the record contains evidence supporting the trial
court’s findings under R.C. 2929.14(C) (4). Therefore, we have no basis for concluding
that it is contrary to law.
4.3. Conclusion.
{¶103} Eberhardt’s Fourth Assignment of Error is overruled.
Richland County, Case No. 2019CA0111 43
{¶104} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur