State v. Perkins , 2009 Ohio 6722 ( 2009 )

[Cite as State v. Perkins, 2009-Ohio-6722.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-09-14
v.
WILLIAM H. PERKINS, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-09-15
v.
WILLIAM H. PERKINS, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court Nos. 08CR0158 and 08CR0208
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: December 21, 2009
APPEARANCES:
Craig M. Jaquith for Appellant
Derek DeVine for Appellee
Case Nos. 13-09-14 and 13-09-15
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, William H. Perkins (“Perkins”) appeals the
judgment of the Seneca County Court of Common Pleas, finding him guilty of
aggravated robbery, trafficking in drugs, and other related felonies. On appeal,
Perkins claims that the trial court erred when it limited his cross-examination of a
witness at trial and when it ordered that he pay restitution without specifying the
recipients in the judgment entry. For the reasons set forth below, the judgment is
affirmed in part and reversed in part.
{¶2} In August 2008, the Seneca County Grand Jury issued an eight-count
indictment against Perkins for an armed robbery of The Medicine Shoppe
Pharmacy in Tiffin, Ohio, for the theft of oxycodone (a Schedule II controlled
substance) from the establishment, for the sale and use of the drugs obtained in the
robbery, and for destroying and tampering with evidence associated with the
crimes. Perkins was indicted for: Count One – breaking and entering in violation
of R.C. 2911.13(A), a felony of the fifth degree; Count Two – aggravated robbery
in violation of R.C. 2911.01(A)(1), a felony of the first degree, with a firearm
specification in violation of R.C. 2941.145; Count Three – complicity to
tampering with evidence in violation of R.C. 2923.03(A)(2) and 2921.12(A)(1), a
felony of the third degree; Count Four – aggravated trafficking in drugs in
violation of R.C. 2925.03(A)(2) and (C)(1)(a); Count Five – receiving stolen
-2-
Case Nos. 13-09-14 and 13-09-15
property in violation of R.C. 2913.51, a felony of the fourth degree; Count Six –
aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(a), a felony
of the fourth degree; Count Seven – tampering with evidence in violation of R.C.
2921.12(A)(1), a felony of the third degree; and, Count Eight – incidents of
corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of the first degree
(“pattern of corrupt activity charge”).1
{¶3} Perkin’s first trial was held during six days in December 2008. Two
witnesses, Andrea Ford and Angela Wolfe, testified as accomplices after entering
into plea agreements with the State. Ms. Ford testified that she was engaged to
Perkins and that they had a child together. She further testified that she, Perkins,
and Ms. Wolf made plans to rob The Medicine Shoppe in order to obtain pills
containing oxycodone. On June 23, 2008, Ms. Ford used Ms. Wolfe’s car to drive
Perkins to Tiffin, and she waited outside in the car while he took his gun and went
into the pharmacy. After the robbery, they drove back to their trailer in Clyde
where they placed the pills into baggies for sale. Ms. Ford also testified about
burning the evidence from the robbery and obtaining spray paint in order to cover
up the maroon front bumper of the car that was used for the crime.
1
In September 2008, a separate indictment was issued for receiving stolen property, which charge was
interlineated into the original indictment as Count Five, and the original Count Five, which had alleged the
same offense, was dismissed. The two indictments resulted in two separate trial-court case numbers, 08 CR
158 and 08 CR 0208, but the two cases were consolidated before trial. As a result, there are two appeal
numbers associated with this appeal, 13-09-14 and 13-09-15.
-3-
Case Nos. 13-09-14 and 13-09-15
{¶4} Ms. Wolfe testified that she sold a portion of the pills that Perkins
had obtained after the robbery, including a sale to an individual who was acting as
a confidential informant for the Tiffin Police Department. Subsequently, she made
several more trips to Perkin’s and Ms. Ford’s trailer, with the knowledge of the
police, in order to obtain additional information. Based on this information, a
search warrant for the trailer was obtained and the police recovered oxycodone,
drug paraphernalia, and additional evidence.
{¶5} Other witnesses also testified, including the two employees from
The Medicine Shoppe who described the robber by the clothes he was wearing and
his approximate height and weight. They could not positively identify the robber
because of the concealing clothing he wore, but they testified that he was armed
with a handgun.
{¶6} On December 29, 2008, the jury convicted Perkins of aggravated
possession of drugs and aggravated trafficking in drugs, and acquitted him of
breaking and entering. The jury was not able to reach a verdict concerning the
remaining five counts, which were scheduled for retrial.
{¶7} In February 2009, a second trial was held on four of the remaining
counts in the indictment. The State dismissed the pattern of corrupt activity
charge, and retried Perkins on the charges of aggravated robbery, receiving stolen
-4-
Case Nos. 13-09-14 and 13-09-15
property, tampering with evidence, and complicity to tampering with evidence.
The jury returned guilty verdicts on all four counts at issue in the second trial.
{¶8} A sentencing hearing was held on March 5, 2009, and the trial court
sentenced Perkins to a total of sixteen years and three months in prison. The trial
court also ordered Perkins “to pay restitution in the amount currently totaling
$17,017.22.” (March 6, 2009 Nunc Pro Tunc Judgment Entry of Sentencing.)
{¶9} It is from this judgment that Perkins appeals, presenting the
following two assignments of error for our review.
First Assignment of Error
The trial court erred when it improperly limited Mr. Perkin’s
cross-examination of Andrea Ford, in violation of his rights as
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution, and by Section 10, Article I of the
Ohio Constitution.
Second Assignment of Error
The trial court erred in imposing a sentence that contains an
order of restitution without identification of the individual or
entity entitled to receive such restitution.
{¶10} In his first assignment of error, Perkins complains that the trial court
erred during the second trial when it sustained the State’s hearsay objection to
having Ms. Ford read excerpts from several letters. Perkins claims that the
readings from the letters were necessary for the purpose of impeaching Ms. Ford,
and that the outcome of the second trial was affected by their exclusion.
-5-
Case Nos. 13-09-14 and 13-09-15
{¶11} During cross-examination in the first trial, defense counsel presented
Ms. Ford with several letters that she had written to Perkins while she was in jail.
Ms. Ford acknowledged that she had written the letters and admitted that she had
stated in the letters that they were both innocent of the robbery of The Medicine
Shoppe. Ms. Ford was asked to read certain highlighted portions of the letters.
On redirect examination, Ms. Ford affirmed that she was now telling the truth at
trial, and that the statements of innocence in the letter were not the truth.
{¶12} In the second trial, defense counsel again attempted to impeach Ms.
Ford through the use of her letters to Mr. Perkins. Counsel handed Ms. Ford the
letters and she acknowledged that she had written them while in jail before she had
changed her plea. However, when defense counsel asked her to read the
highlighted portions, the State objected, arguing that the letters were hearsay and
were being offered to prove the truth of the matter asserted therein.2 The trial
court sustained the objection. (Second Trial, Tr. Vol. II, p. 433). Defense counsel
then continued with cross-examination:
Q. *** During the time that you were in jail, before you saw
– before – before you decided to cooperate with the State,
what was your position on the charges against you?
A. That we were innocent.
Q. I’m sorry?
2
Both counsel then approached the bench, but the conversation was not on the record.
-6-
Case Nos. 13-09-14 and 13-09-15
A. That we were innocent.
Q. When you say “we” who’s “we”?
A. [Perkins] and I.
Q. How often did you express that?
A. Quite a bit. If anybody asked me I would tell them that
we were innocent.
{¶13} On appeal, Perkins argues that defense counsel was attempting to
introduce the letters to impeach Ms. Ford, and not as substantive proof of his
innocence. He claims that Perkins had a right to elicit Ms. Ford’s reaction on the
witness stand to the confrontation with her own prior inconsistent statements and
that he had the right to have the jury observe the witness’s reactions to the prior
inconsistent statements.
{¶14} The admission or exclusion of evidence “lies within the broad
discretion of the trial court, and a reviewing court should not disturb evidentiary
decisions in the absence of an abuse of discretion that has created material
prejudice.” State v. Kesler, 3d Dist. No. 13-06-09, 2006-Ohio-6340, ¶ 33.
Accordingly, our review is limited to determining whether the trial court acted
unreasonably, arbitrarily, or unconscionably. Id., citing State v. Barnes, 94 Ohio
St.3d, 21, 23, 2002-Ohio-68, 759 N.E.2d 1240.
{¶15} Perkins cites this Court’s decision in State v. Talbert (1986) 33 Ohio
App.3d 282, 515 N.E.2d 968, in support of his contention that the trial court’s
-7-
Case Nos. 13-09-14 and 13-09-15
ruling was in error because he was denied his constitutional right to confront the
witness. “Pursuant to the Confrontation Clause of the Sixth Amendment to the
United States Constitution, every individual accused of a crime must be provided
the opportunity to cross-examine the witnesses and to provide an occasion for the
jury to weigh the demeanor of that witness.” State v. Talbert, 33 Ohio App.3d at
285, citing Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.
In Talbert, we held that the trial court’s ruling had denied the defendant his
right to effective cross-examination and was a prejudicial constitutional error. See
id. However, we find that the facts in this case are very different and the holding
in Talbert is not applicable to the facts in Perkin’s second trial.
{¶16} The defendant in the Talbert case had been accused of sexual
imposition. In order to attack the alleged victim’s credibility, defense counsel
asked if she had ever made certain statements.3 On the witness stand and under
oath, the witness denied having made those statements. Defense counsel then
requested a tape recorder to play back, in front of the witness and the jury, a
recording of a telephone conversation wherein the witness had made the alleged
statements. The trial court denied this request. However, the next day, the trial
court allowed the tape to be played to the witness outside of the presence of the
jury, rather than in open court. The witness listened to the tape in chambers and
3
In Talbert, the defense counsel sought to play a recording of the alleged victim saying she had “Talbert’s
ass nailed” and that “[he] (Talbert) will never put his hands on another woman.” Talbert, at 284.
-8-
Case Nos. 13-09-14 and 13-09-15
then admitted making the statements. Talbert, 33 Ohio App.3d at 284. This Court
concluded that the trial court should have allowed defense counsel to play the tape
in open court so that the jury could have seen the reaction of the witness when
confronted with her own contrary statements. Id. at 285. Playing the recording of
the prior inconsistent statement for the witness in the privacy of chambers
eliminated this key factor. Id.
{¶17} The facts in the case before us now are clearly distinguishable from
the situation in Talbert. Ms. Ford had previously testified about those same letters
in the first trial, so there was no element of surprise and not likely to be any
reaction. In fact, she was confronted with the letters in front of the jury, and
defense counsel was permitted to ask her questions about them and their contents.
Unlike the Talbert witness, Ms. Ford had not denied that she had made the
statements in the letters; she acknowledged that she had. Defense counsel cross-
examined her concerning the letters, and she told the jury what was in those letters
and admitted that she had written statements proclaiming that they were innocent.
{¶18} In State v. McKinnon, the Seventh District Court of Appeals
considered a similar challenge when defense counsel fully confronted and cross-
examined the witness relative to her inconsistent statement; however, the report
containing the statement was not permitted to be admitted as an exhibit.
McKinnon, 7th Dist. No. 02 CO 36, 2004-Ohio-3359. In McKinnon, the court of
-9-
Case Nos. 13-09-14 and 13-09-15
appeals distinguished the case from Talbert and determined that there was no
prejudicial error because the witness’s reaction to the inconsistent statement in the
report was before the jury. In fact, similar to the case before us, the witness
admitted she had seen the statement before. Id., at ¶71. The court of appeals
stated that “in Talbert, the error was not necessarily in the jury’s failure to hear the
tape itself, but in the failure to see the witness when she was actually being
impeached.” Id., at ¶70.
{¶19} At Perkin’s second trial, the jury was able to hear the witness
describe her prior inconsistent statements and was also able to observe her
reactions to being confronted with the letters containing those statements. We find
that the trial court’s evidentiary ruling did not violate Perkin’s constitutional rights
to fully confront a witness nor did it cause any material prejudice. The trial
court’s decision was not an abuse of discretion and Perkin’s first assignment of
error is overruled.
{¶20} In his second assignment of error, Perkins states that the trial court
erred because the judgment entry did not state who was to receive the restitution.
We agree that the judgment entry did not specify the restitution recipients.
{¶21} R.C. 2929.18 provides the guidelines for financial sanctions and the
payment of restitution, and states that “(A) *** [f]inancial sanctions that may be
imposed pursuant to this section include, but are not limited to, the following: (1)
-10-
Case Nos. 13-09-14 and 13-09-15
Restitution by the offender to the victim of the offender’s crime *** in an amount
based on the victim’s economic loss.” The statute further specifies that “the
amount the court orders as restitution shall not exceed the amount of the economic
loss suffered by the victim as a direct and proximate result of the commission of
the offense.” R.C. 2929.18(A)(1). State v. Portentoso, 173 Ohio App.3d 297,
2007-Ohio-5490, 878 N.E.2d 76, ¶8; State v. Didion, 173 Ohio App.3d 130, 2007-
Ohio-4494, 877 N.E.2d 725, ¶16. Prior to its amendment in 2004, R.C.
2929.18(A)(1) also allowed restitution to be paid to third parties, including
insurance companies. See State v. Kreischer, 109 Ohio St.3d.391, 2006-Ohio-
2706, 848 N.E.2d 496. After the statute was amended, payment of restitution was
limited to those named in the statute, including the victim, the adult probation
department serving the county on behalf of the victim, the clerk of courts, or
another agency designated by the court. State v. Bartholomew, 119 Ohio St.3d
359, 363, 2008-Ohio-4080, 894 N.E.2d 307, 311, ¶8; R.C. 2929.18(A)(1).
{¶22} At the sentencing hearing, the trial court awarded specific amounts
of restitution to be paid to three recipients. In the judgment entry, the trial court
only ordered the total amount of restitution to be paid and failed to specify the
recipients that it had named at the sentencing hearing.
{¶23} In another case involving restitution, the trial court also ordered
restitution at the sentencing hearing, but did not specify the exact amount or the
-11-
Case Nos. 13-09-14 and 13-09-15
recipients in its final orders. See State v. DeLong, 2nd Dist. No. 20656, 2005-
Ohio-1905. The Second District Court of Appeals stated:
It is well established that the court speaks only through its
journal entries, not by its oral pronouncements. Schenley v.
Karth (1953), 160 Ohio St. 109, 113 N.E.2d 625. It is undisputed
that the termination entry herein is blank as to the amount of
restitution. The court's oral pronouncement is insufficient. Not
only is the amount of restitution not journalized, but the Clerk
of Court has no mechanism nor record upon which to determine
to whom the restitution is to be paid.
DeLong, at ¶18. The court further specified that “at a minimum, the total amount
must be journalized and a cogent record must exist as to whom said amount shall
be distributed.” Id, at ¶19.
{¶24} Perkin’s was aware of the intended recipients and the amounts due
each recipient because the trial court ordered the payment of restitution at his
sentencing hearing. However, the judgment entry failed to accurately reflect what
occurred at the sentencing hearing and did not specify the eligible recipients of the
restitution. Therefore, Perkin’s second assignment of error is sustained and the
matter is remanded to the trial court.
{¶25} The judgment of the Seneca County Court of Common Pleas is
affirmed in part and reversed in part, and remanded for further proceedings
consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
-12-
Case Nos. 13-09-14 and 13-09-15
PRESTON, P.J. and SHAW, J., concur.
/jlr
-13-