State v. Grillon , 2012 Ohio 893 ( 2012 )

[Cite as State v. Grillon, 2012-Ohio-893.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 10 CO 30)
DAVID GRILLON, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Columbiana County, Ohio
Case No. 08CR322
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Robert L. Herron
Prosecutor
John E. Gamble
Assistant Prosecutor
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant Attorney Douglas A. King
91 West Taggart St., P.O. Box 85
East Palestine, Ohio 44413
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 1, 2012
[Cite as State v. Grillon, 2012-Ohio-893.]
DONOFRIO, J.
{¶1} Defendant-appellant, David Grillon, appeals from a Columbiana County
Common Pleas Court judgment convicting him of four counts of felony theft and one
count of misdemeanor theft, following a jury trial, and the resulting sentence.
{¶2} This case arises from five separate transactions in which appellant was
involved.
{¶3} The first transaction occurred on February 4, 2008, when appellant
went into the East of Chicago Pizza shop in Lisbon and approached owner, Mark
Passerotti about holding a car show every week in his parking lot from April through
September. Passerotti agreed and gave appellant $750, which appellant promised
he would get back. When the time to start the car shows grew near, Passerotti
contacted appellant, who told him that he had to cancel the first show. Appellant
then gave various reasons why he could not hold the subsequent car shows.
Ultimately, appellant did not put on any car shows and did not refund Passerotti’s
money.
{¶4} The second transaction occurred on February 25, 2008, when appellant
approached Robert Gresh, owner of Calcutta Auto Parts in East Liverpool, about
being the main sponsor for a car show to be held at Olgivie Plaza. Appellant told
Gresh the car show would be held every Saturday from April through September.
Gresh agreed and paid appellant $750, which appellant promised Gresh would get
back. Appellant never held a car show at the Olgivie Plaza. And appellant did not
refund Gresh’s money.
{¶5} The third transaction occurred sometime in the spring of 2008 when
appellant approached Edward Gorby, owner of West Coast Tattooing in Calcutta, at
his place of business about sponsoring a weekly bike show at Olgivie Square from
April through September. Gorby agreed and gave appellant $1,250. Appellant never
held the bike shows. He eventually refunded Gorby $150 of the $1,250.
{¶6} The fourth transaction occurred on March 10, 2008, when appellant
approached Christopher McHenry, who owned Destination Cycle in Glenmore, about
sponsoring a weekly car and bike show at Olgivie Square from May through
September. McHenry agreed and paid appellant $500, which appellant promised he
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would get back from the show’s profits. Appellant did not hold any of the shows. He
also never refunded McHenry’s money.
{¶7} The fifth and final transaction occurred on March 6, 2008, when
appellant approached Jim Werneke, an insurance agent at Allstate Insurance
Company located in Olgivie Square Plaza, about sponsoring a weekly car show to be
held in the plaza from April through September. Werneke agreed and gave appellant
$400, which appellant promised he would get back. Appellant never held the
expected shows and never refunded McHenry’s money.
{¶8} On October 31, 2008, a Columbiana County Grand Jury indicted
appellant on one count of theft where the value of the stolen property is more than
$500 and less than $5,000, a fifth-degree felony in violation of R.C. 2913.02(A)(3).
{¶9} On June 24, 2009, a Columbiana County Grand Jury indicted appellant
on three counts of theft where the value of the stolen property is more than $500 and
less than $5,000, fifth-degree felonies in violation of R.C. 2913.02(A)(3); and one
count of theft, a first-degree misdemeanor in violation of R.C. 2913.02(A)(3).
{¶10} The cases were consolidated for a jury trial. The jury found appellant
guilty on all five counts. The court proceeded immediately to sentencing, over
appellant’s objection. The court sentenced appellant to six months on each of the
four felony counts and an additional six months on the misdemeanor count. The
court ordered that the sentences on the four felony counts run consecutively to each
other and that the sentence on the misdemeanor count run concurrently with the
other sentences for a total of two years in prison. The court also ordered appellant to
make restitution to the five victims in the amounts of $750, $1,100, $750, $750, and
$400.
{¶11} Appellant filed two timely notices of appeal on September 17, 2010.
This court consolidated the two appeals.
{¶12} Appellant raises ten assignments of error, the first of which states:
{¶13} “DEFENDANT/APPELLANT’S SIXTH AMENDMENT RIGHT TO
COUNSEL WAS VIOLATED.”
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{¶14} Just before jury selection began, appellant moved the court to allow him
to retain his own counsel. (Tr. 3). The court denied his request. The court noted
that appellant’s case originated in 2008 and it was now 2010, and pointed out that
appellant had been the cause of the delay. (Tr. 3-6). The court stated that had
appellant made his request in a more timely fashion, it would have approved it. (Tr.
5). Appellant then proceeded to trial with his court-appointed counsel.
{¶15} Appellant now argues that his right to counsel was violated when the
trial court denied his request to hire counsel of his own choice.
{¶16} A trial court's decision to deny a substitution of counsel and require a
trial to proceed with the assigned counsel is reviewed on appeal for abuse of
discretion. State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298 (1999). Abuse of
discretion connotes more than an error of law or judgment; it implies that the trial
court's attitude was unreasonable, arbitrary, or unconscionable. State v. Adams, 62
Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶17} “In evaluating a request for substitute counsel, the court must balance,
‘the accused's right to counsel of his choice [against] the public's interest in the
prompt and efficient administration of justice.’ United States v. Jennings (C.A.6,
1996), 83 F.3d 145, 148. The court may deny the motion if it finds the motion was
made simply to delay the trial, or was not made in good faith.” State v. Davis, 7th
Dist. No. 05-MA-235, 2007-Ohio-7216, ¶37.
{¶18} Here the court found that appellant’s request for a continuance to obtain
new counsel was made simply to delay the trial. The court pointed out to appellant
that his was a 2008 case and it was now 2010. (Tr. 3-4). It referenced a comment it
had made to appellant at a prior hearing that he was doing a good job of making sure
the case did not go forward. (Tr. 4). The court told appellant that had he made his
request for new counsel a month prior and not on the morning of trial, it would have
granted it. (Tr. 5). It pointed out that at the last hearing it told him, “When your day
for trial comes up, if you’re still alive, and warm to the touch, we’re going to trial.” (Tr.
5). Appellant recalled that statement. (Tr. 5). Appellant then tried to argue that his
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counsel was not prepared to proceed. (Tr. 5-6). However, the court questioned
counsel who stated that he was prepared to go forward that day and informed the
court of what he had done in preparation for trial. (Tr. 6-7).
{¶19} Given the above, we cannot conclude that the trial court abused its
discretion in denying appellant’s request for a continuance to obtain new counsel.
The court made clear the reason it denied appellant’s request was that he made it on
the day of trial after two years of continuances. Furthermore, appellant’s counsel
stated that he was prepared to go forward with trial that day. Thus, the court’s
decision was not unreasonable, arbitrary, or unconscionable.
{¶20} Accordingly, appellant’s first assignment of error is without merit.
{¶21} Appellant’s second assignment of error states:
{¶22} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING EVIDENCE OF DEFENDANT/APPELLANT’S ASSERTION OF HIS
FIFTH AMENDMENT RIGHT TO REMAIN SILENT.”
{¶23} Appellant argues that certain testimony violated his right to remain
silent. He contends that the testimony was directed to lead the jury to assume that
his silence meant that he was guilty.
{¶24} The Fifth Amendment of the United States Constitution guarantees an
accused the right to remain silent and prevents the prosecution from commenting on
the silence of a defendant who asserts the right. Griffin v. California, 380 U.S. 609,
614, 85 S.Ct. 1229 (1965).
{¶25} Appellant first takes issue with testimony by Officer Sharmain Daub.
During direct examination, Officer Daub testified that she spoke on the phone with
appellant several times between August 12 and September 9, 2008, during which
appellant indicated that he was going to return money to Passerotti. (Tr. 120-23).
Officer Daub stated that she spoke with Passerotti on October 8, 2008, and learned
that he had not received a check from appellant. (Tr. 123). The prosecutor then
asked Officer Daub if appellant ever contacted her regarding delivering the check to
Passerotti. (Tr. 123). Officer Daub responded that appellant did not. (Tr. 123).
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{¶26} Firstly, we must note that appellant’s counsel did not object to Officer
Daub’s testimony. However, he later argues that his counsel was ineffective for
failing to object.
{¶27} Generally, the failure to object to an alleged error waives all but plain
error. State v. Krupa, 7th Dist. No. 09-MA-135, 2010-Ohio-6268, ¶57. But a
defendant's claim that he was denied effective assistance of counsel eliminates the
requirement that an objection be made in order to preserve an error for appeal. Id.,citing State v. Carpenter, 116 Ohio App.3d 615, 621, 688 N.E.2d 1090 (1996).
{¶28} When read in context, there was no error in Officer Daub’s testimony.
Her testimony detailed her investigation and her attempt to help Passerotti recover
his funds from appellant. She was not commenting on appellant’s purported silence.
Instead she was describing that while appellant told Passerotti he would refund his
money, appellant never followed through with this. Thus, Officer Daub’s testimony
did not violate appellant’s right to remain silent.
{¶29} Second, appellant takes issue with testimony by Detective Brian
McKenzie. During direct examination, the following took place:
{¶30} “Q. Did you take any action either that day, or the following week, with
respect to those complaints [by Gresh and Werneke]?
{¶31} “A. Um, October 6th I actually made a phone call to the Defendant, um,
actually spoke to the Defendant on the phone. I advised the Defendant that I had
two complaints filed against him regarding the sponsorships for the car cruise, and I
requested he come in for an actual interview.
{¶32} “The Defendant at that time refused to come in for an interview.
{¶33} “Later on that day I did receive a voicemail on my office phone from the
Defendant, indicating that he was going to contact the two complainants at that time,
and try to set up some sort of reimbursement plan with them.
{¶34} “THE COURT: Approach the bench for a minute.
{¶35} “[Off the record discussion]
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{¶36} “THE COURT: We’re going to take a little time folks, this will just take a
minute
{¶37} “(Thereupon, Attorney Gamble [the prosecutor] talked to the witness at
the witness stand, out of the hearing of the jury.)” (Tr. 258-59).
{¶38} Given the timing of the court’s interruption, the court may have
interrupted to instruct the prosecutor and Detective McKenzie not to comment on
appellant’s refusal to come in for an interview. After the off-the-record sidebar, the
prosecutor redirected his line of questioning back to the reimbursement and away
from appellant’s purported silence. Thus, while we cannot be sure of the
conversation between the court and counsel, the court may have cautioned the
prosecutor to instruct Detective McKenzie not to testify about appellant’s refusal to
come in for an interview.
{¶39} Detective McKenzie later testified regarding his continuing investigation:
{¶40} “Q. Did you call the Defendant, or speak to the Defendant any further
about those matters, or speak to him further about the matters involving Mr. Werneke
or Mr. Gresh?
{¶41} “A. No, I did not.
{¶42} “Q. How many times did you contact the Defendant?
{¶43} “A. I actually spoke to the Defendant one time. I called him probably
two or three other times.
{¶44} “Q. And did you hear back from him?
{¶45} “A. No, sir.” (Tr. 261).
{¶46} Once again, appellant did not object to this testimony.
{¶47} As was the case with Officer Daub’s testimony, Detective McKenzie
was simply testifying about the course of his investigation and his attempt to help
Gresh and Werneke recover their money from appellant. His testimony was not a
comment on appellant’s silence.
{¶48} This court recently addressed a situation where the appellant took issue
with testimony by an officer and an investigator from the prosecutor’s office regarding
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his failure to make contact and failure to meet for an appointment. State v. Collins,
7th Dist. No. 10-CO-10, 2011-Ohio-6365. As in this case, Collins asserted that this
testimony violated his Fifth Amendment right to remain silent. We found that the
testimony did not amount to a Fifth Amendment violation because the testimony was
not clearly meant to allow the jury to infer Collins’s guilt and the testimony did not
directly refer to Collins’s assertion of his right to silence, but, instead, went to
describing the witnesses’ course of investigation. Id. at ¶27.
{¶49} The same can be said here. Officer Daub’s and Detective McKenzie’s
testimony were not meant to lead the jury to infer that appellant was guilty. Instead,
both witnesses were discussing the course of their investigations and their efforts in
seeing that several people received reimbursement from appellant. Thus, the
admission of the contested testimony was not error.
{¶50} Accordingly, appellant’s second assignment of error is without merit.
{¶51} Appellant’s third assignment of error states:
{¶52} “DEFENDANT/APPELLANT’S SIXTH AMENDMENT
CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE HIS
ACCUSERS WAS DENIED.”
{¶53} Here appellant argues that the trial court admitted inadmissible
hearsay. Once again, appellant did not object to the testimony he now takes issue
with. However, he also argues later in his appeal that his counsel was ineffective for
failing to do so.
{¶54} Hearsay is an out-of-court statement, offered in court, to prove the truth
of the matter asserted. Evid.R. 801(C). Generally, hearsay is inadmissible. Evid.R.
802.
{¶55} Appellant takes issue with two witnesses’ testimony. First, he takes
issue with Gresh’s testimony that after he entered into the agreement with appellant,
he was contacted by Dave Gamble from D&D Auto Repair. (Tr. 176-77). Gresh
testified that Gamble told him appellant contacted him and asked him to be the main
sponsor for the car show in which Gresh had already paid appellant $750 to be the
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main sponsor. (Tr. 177-78). Gresh testified that this conversation with Gamble
caused him concern. (Tr. 178, 192-93). Gresh also stated that a conversation with a
maintenance worker at Olgivie Plaza where the worker indicated that the plaza did
not have a contract for any car shows caused him some concern. (Tr. 178-79). And
Gresh testified he had heard that appellant had gone to other businesses promoting
car shows but no car shows ever materialized. (Tr. 189).
{¶56} This evidence was not offered to prove the truth of the matter asserted.
Therefore, it is not hearsay. Gresh’s testimony as to what others told him was an
attempt to demonstrate the reason for his own growing concern over his “investment”
with appellant. Furthermore, the only testimony that might have been offered to
prove the truth of the matter asserted was Gresh’s testimony that appellant had gone
to other businesses promoting car shows that never materialized. This testimony
was corroborated by each of the other victims in this case. They all testified that
appellant promised car or bike shows and never followed through. Thus, Gresh’s
testimony on this point was merely cumulative.
{¶57} Second, appellant takes issue with Gary Shreve’s testimony. Shreve
was appellant’s witness. He testified regarding numerous car shows he worked at for
appellant. On cross examination, Shreve testified that he experienced a payment
dispute after one of the shows where appellant had told him that the business owner
was going to pay him and when he went to the business owner she told him that she
had already paid appellant. (Tr. 285). Shreve stated that was the last time he heard
from appellant. (Tr. 285-86).
{¶58} Once again, this statement was not offered to prove the truth of the
matter asserted. Whether the woman in question had actually paid appellant for
Shreve’s services was irrelevant. Instead, what was relevant was that Shreve was
involved in an on-going business relationship with appellant and after this dispute, he
did not hear from appellant again.
{¶59} Because the testimony at issue was not hearsay, there was no error in
its admission. Accordingly, appellant’s third assignment of error is without merit.
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{¶60} Appellant’s fourth assignment of error states:
{¶61} “REVERSIBLE ERROR WAS COMMITTED WHEN THE
PROSECUTION INTRODUCED EVIDENCE OF UNCHARGED MISCONDUCT ON
THE PART OF DEFENDANT/APPELLANT.”
{¶62} In this assignment of error, appellant contends that the state
impermissibly introduced evidence of his prior bad acts. Specifically, he takes issue
with Gresh’s testimony that appellant’s name appears in “just about any county
system.” (Tr. 193). And he takes issue with Shreve’s testimony on cross
examination about a misunderstanding regarding whether appellant received certain
money (Tr. 285) and where the prosecutor asked Shreve about when appellant
“stiffed” him (Tr. 286).
{¶63} Evidence of prior bad acts is inadmissible for proving that the accused
acted in conformity with his bad character. State v. Treesh, 90 Ohio St.3d 460, 482,
739 N.E.2d 749 (2001); Evid.R. 404(B).
{¶64} As to Gresh’s statement, appellant’s counsel immediately objected. (Tr.
193). The trial court sustained the objection and instructed the jury to disregard the
comment. (Tr. 913). A jury is presumed to follow the court’s curative instructions.
State v. Bereschik, 116 Ohio App.3d 829, 837, 689 N.E.2d 589 (1996). Thus,
Gresh’s statement was quickly addressed by the court and, we can presume,
disregarded by the jury.
{¶65} Appellant’s counsel did not object to Shreve’s statements. But once
again, appellant contends his counsel was ineffective for failing to do so.
{¶66} As discussed in appellant’s third assignment of error, Shreve was
appellant’s witness who was called to testify as to the numerous car shows appellant
held. He testified at length about the sponsors, dash plaques, and trophies from the
various car shows. (Tr. 278-83). After listening to Shreve’s testimony, the jury was
likely left with the impression that appellant put on many car shows without issue.
Thus, it was a proper cross examination subject for the prosecutor to attack this
reputation of infallible car shows by bringing up one instance where everything did
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not run smoothly. In other words, appellant put his reputation of putting on high-
quality car shows at issue.
{¶67} As to the comment about being “stiffed,” the prosecutor’s question to
Shreve was: “And when was it, that last show that you described, when you got
stiffed on the fee?” (Tr. 286). Notably, the prosecutor did not ask when appellant
stiffed him. Based on the preceding testimony discussed in appellant’s third
assignment of error and the question asked by the prosecutor, it was just as likely
that the woman whom they were discussing “stiffed” Shreve.
{¶68} Thus, in none of the above instances did the trial court abuse its
discretion in allowing the testimony. Accordingly, appellant’s fourth assignment of
error is without merit.
{¶69} Appellant’s fifth assignment of error states:
{¶70} “THE TRIAL COURT ERRED BY JOINING ALL COUNTS IN BOTH
CASES FOR TRIAL THEREBY DEPRIVING DEFENDANT/APPELLANT A FAIR
TRIAL IN VIOLATION OF THE UNITED STATES CONSTITUTION AMENDMENTS
SIX AND FOURTEEN AND THE OHIO CONSTITUTION ARTICLES 1, SECTIONS
9, 10, 16.”
{¶71} As set out above, the trial court joined appellant’s two indictments
together for trial. Appellant asserts that he was prejudiced by this joinder. He further
asserts that he was prejudiced by the joining of all counts in the second indictment for
one trial. He claims that the state requested the joinder because it wanted the jury to
rely on evidence from each case to corroborate that in the other cases. He argues
that the state’s motive is exemplified in the prosecutor’s closing argument where he
lumped all of the offenses together by stating: “This Defendant took as much as four
thousand dollars from residents and business owners here in Columbiana County.”
(Tr. 311).
{¶72} As was the case with many of appellant’s previous alleged errors, he
did not object to this alleged error. And as was the case with the other alleged to
errors, he maintains that his counsel was ineffective for failing to lodge an objection.
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{¶73} The decision to join offenses or indictments for trial will not be reversed
absent a showing that the trial court abused its discretion. State v. Torres, 66 Ohio
St.2d 340, 343, 421 N.E.2d 1288 (1981); State v. Gooden, 8th Dist. No. 82621, 2004-
Ohio-2699, ¶16.
{¶74} Pursuant to Crim.R. 8(A), two or more offenses may be charged in the
same indictment if the offenses “are of the same or similar character * * * or are
based on two or more acts or transactions connected together or constituting parts of
a common scheme or plan, or are part of a course of criminal conduct.” And
pursuant to Crim.R. 13, two or more indictments may be tried together if they could
have been joined in a single indictment. The Ohio Supreme Court has noted that
“‘[t]he law favors joining multiple criminal offenses in a single trial under Crim.R.
8(A).’” State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, ¶28, quoting State v.
Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991).
{¶75} But if it appears that the defendant is prejudiced by a joinder, the trial
court shall grant a severance or provide other relief as justice requires. Crim.R. 14.
The burden is on the defendant to show prejudice. Brinkley, at ¶29, citing State v.
Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), syllabus.
{¶76} “When a defendant claims that he was prejudiced by the joinder of
multiple offenses, a court must determine (1) whether evidence of the other crimes
would be admissible even if the counts were severed, and (2) if not, whether the
evidence of each crime is simple and distinct.” State v. Schaim, 65 Ohio St.3d 51,
59, 600 N.E.2d 661 (1992). When simple and distinct evidence exists, an accused is
not prejudiced by the joinder of multiple offenses in a single trial, regardless of
whether the evidence is admissible as other-acts evidence. State v. Coley, 93 Ohio
St.3d 253, 260, 754 N.E.2d 1129 (2001).
{¶77} The trial court did not abuse its discretion in granting the state’s motion
for a single trial here. The evidence of each crime was simple and distinct. Each
victim simply testified as to how appellant approached them, their agreement with
appellant, the fact that appellant never followed through with the agreement, and the
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fact that appellant never refunded their money. There was nothing complicated
about the evidence. Furthermore, all of the crimes occurred during the same short
timeframe. The agreements were all entered into in February and March 2008 for
shows that were to take place from April through September 2008. And all of the
crimes were of a very similar character pursuant to Crim.R. 8(A). Each one involved
appellant taking money from someone, promising to hold car/bike shows where the
person would make their money back and advertise, and appellant failing to hold the
promised shows. Consequently, the court did not abuse its discretion in holding a
single trial for all five crimes.
{¶78} Accordingly, appellant’s fifth assignment of error is without merit.
{¶79} Appellant’s sixth assignment of error states:
{¶80} “DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL.”
{¶81} Here appellant argues that his counsel was ineffective for failing to
object to the instances set out in assignments of error two (alleged violations of right
to remain silent), three (alleged inadmissible hearsay), four (testimony on prior bad
acts), and five (joinder of offenses for trial).
{¶82} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
Second, appellant must demonstrate that he was prejudiced by counsel's
performance. Id. To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
{¶83} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.- 13 -
{¶84} Counsel was not ineffective in this case. All of appellant’s alleged
instances of ineffectiveness rely on assertions that his counsel should have objected
at various points throughout the trial proceedings.
{¶85} Counsel can be considered to have been ineffective where there was
deficient performance in the failure to object to a matter and the result of the
proceeding would have been different but for the failure to object. State v. Clemons,
7th Dist. No. 10-BE-7, 2011-Ohio-1177, ¶15. However, “[t]he failure of counsel to
object may be the result of trial strategy, and ‘will almost never rise to the level of
ineffective assistance of trial counsel.’” State v. Rossbach, 6th Dist. No. L-09-1300,
2011-Ohio-281, ¶141, quoting State v. Jones, 2d Dist. No. 20349, 2005-Ohio-1208,
¶28.
{¶86} We have already reviewed appellant’s assignments of error where he
calls into question the issues he believes counsel sould have objected to. None of
them have merit. Moreover, appellant has not demonstrated that the result of his trial
would have been different had his counsel objected. Accordingly, appellant’s sixth
assignment of error is without merit.
{¶87} Appellant’s seventh and eighth assignments of error share a common
factual basis. Therefore, we will address them together. They state:
{¶88} “DEFENDANT/APPELLANT’S CONVICTION WAS BASED ON
LEGALLY INSUFFICIENT EVIDENCE.”
{¶89} “DEFENDANT/APPELLANT’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶90} Appellant contends that the offenses he was convicted of were based
upon facts of a purely civil nature that were more akin to establishing a breach of
contract claim. He notes that many witnesses testified as to his “agreements,”
“business agreements,” or “contracts” with the alleged victims. Appellant asserts that
breach of contract does not equal theft. Thus, he contends that his convictions were
not supported by sufficient evidence because, at best, the evidence established that
he breached contracts with the alleged victims.
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{¶91} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a
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. Smith, 80 Ohio
St.3d at 113.
{¶92} The jury convicted appellant of five counts of theft in violation of R.C.
2913.02(A)(3), which provides: “No person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property or
services * * * [b]y deception.”
{¶93} In four of the counts, the value of the property stolen was $500 or more
and less than $5,000. Thus, these four counts were fifth-degree felonies. R.C.
2913.02(B)(2). In the remaining count, the value of the property stolen was less than
$500. Thus, this count was a first-degree misdemeanor. R.C. 2913.02(B)(2).
{¶94} The evidence at trial was as follows.
{¶95} Passerotti testified that in February 2008, appellant came into his pizza
shop and proposed that Passerotti allow him to put on a weekly car show in the
parking lot. (Tr. 133-34). Passerotti stated that appellant would charge five dollars a
car, award prizes, hand out tee-shirts, and provide D.J. services. (Tr. 134, 140).
Appellant told Passerotti he would recoup his money from the five-dollar-per-car fee
up to the $750 he was to invest and then he and appellant would split the fees after
that point. (Tr. 135). Appellant presented Passerotti with a document setting out
some terms of the agreement, which both parties signed. (Ex. 1). There was a term
stating, “All deposits non-refundable on request by both parties,” which appellant
crossed out and initialed at Passerotti’s request. (Ex. 1; Tr. 140-41). Passerotti
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agreed to appellant’s proposition and paid him $750 by check. (Tr. 142-43). When
the time neared for the first show, Passerotti contacted appellant. (Tr. 145).
Appellant informed Passerotti that he had to cancel the first show due to the death of
either his aunt or his mother. (Tr. 145). Appellant indicated that the show would go
on the following week. (Tr. 146). But when the time arrived, appellant told Passerotti
there had been a death in the car club. (Tr. 146). When the time approached for
what should have been the third show, appellant again told Passerotti he had to
cancel due to a death. (Tr. 148). At this point, Passerotti contacted Lisbon Police
Officer Sharmain Daub to report appellant. (Tr. 148). Passerotti stated that appellant
never refunded any of his money despite never holding a car show. (Tr. 150).
{¶96} On cross examination, Passerotti agreed that his arrangement with
appellant was a business agreement. (Tr. 156).
{¶97} Officer Daub testified Passerotti filed a complaint with her in August
2008, regarding appellant’s failure to either hold the promised car shows or refund his
$750. (Tr. 119-20). Officer Daub stated that she contacted appellant who informed
her that he would send a check in the mail to reimburse Passerotti. (Tr. 120). When
Passerotti did not receive the check, she contacted appellant who told her that he
mailed a check, but it must not have arrived. (Tr. 122). Appellant told her twice more
that he would mail another check, which Passerotti never received. (Tr. 122-23).
Consequently, Officer Daub filed charges against appellant. (Tr. 123).
{¶98} Gresh was the next victim to testify. Gresh stated that in February
2008, appellant came into his business, Calcutta Auto Parts, and asked him if he was
interested in sponsoring a car show at Olgivie Plaza to be held every Saturday from
April through September. (Tr. 167). Appellant told Gresh that he would be the main
sponsor and would have his name on all of the banners and trophies. (Tr. 168).
Because the car show was supposed to be co-sponsored by Coca Cola, appellant
told Gresh he would get his money back. (Tr. 168). Gresh agreed and paid
appellant $750. (Tr. 170). Appellant presented Gresh with a contract setting out
details of the show/sponsorship. (Ex. 9). It states, “All deposits non-refundable on
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request by both parties.” (Ex. 9). It is signed only by appellant. (Ex. 9). Gresh
further testified that the next day, a client of his contacted him and told him that
appellant had approached him about being the main sponsor of the car show. (Tr.
177). Gresh said that this started to give him a bad feeling since he was supposed to
be the main sponsor. (Tr. 177-78). Gresh stated that he contacted appellant in April
and appellant told him that his mother-in-law was sick and he had to postpone the car
show. (Tr. 179). Gresh waited and contacted appellant a few weeks later. (Tr. 179).
Appellant told Gresh his mother-in-law had died. (Tr. 179). Gresh kept calling
appellant and appellant kept telling him the shows would go on but he was having
problems getting permits. (Tr. 180). In May or June, appellant told Gresh the shows
would not go on and he would refund Gresh’s money. (Tr. 181). When he did not
receive a check from appellant, Gresh contacted him again and appellant promised
to deliver a check. (Tr. 181). However, appellant never did. (Tr. 181). Gresh
agreed on cross examination that his agreement with appellant was a contract. (Tr.
186).
{¶99} Gorby, the third victim testified next. He stated that in the spring of
2008, appellant approached him at his tattoo business and asked if he would be
willing to sponsor a bike show for $500 to be held at Olgivie Square from April
through September. (Tr. 198, 203). Gorby stated that appellant promised him radio
time, television spots, and banners. (Tr. 198). Appellant also told Gorby he would
get his money back in May. (Tr. 198). Gorby agreed and gave appellant $500. (Tr.
200). A few days later, appellant came back into Gorby’s shop and asked if he
wanted tee shirts for an additional $250, which like the initial investment, he would
get back. (Tr. 200). Gorby agreed and gave appellant the $250. (Tr. 201). A few
days later, appellant returned to Gorby’s shop and offered for Gorby to sponsor the
whole show for an additional $750, to which Gorby again agreed. (Tr. 201-202).
Appellant provided Gorby with a copy of the agreement, signed by appellant only,
containing the statement “All deposits non-refundable on request by both parties.”
(Ex. 11). When the time for the shows approached, Gorby called appellant several
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times and each time appellant told him he was having trouble getting a permit. (Tr.
207). Gorby testified that he found out no permits were required and then asked
appellant for his money back. (Tr. 209). Appellant told Gorby there was a death in
his family and he would start sending his money back. (Tr. 209). Gorby received a
check for $150 from appellant. (Tr. 210). However, he never received the remaining
$1,150. (Tr. 210-11). Gorby then reported appellant to the police. (Tr. 211).
{¶100} McHenry, the fourth victim, testified that appellant came into
Destination Cycle in March 2008, and asked him to donate money towards a car/bike
show at Olgivie Square to be held weekends from May through September. (Tr. 220,
221-22). Appellant told McHenry he would be reimbursed within three months. (Tr.
220, 225). McHenry stated that for $500, appellant promised to put his name on tee
shirts and banners at the show. (Tr. 220). Appellant presented McHenry with an
agreement, which was signed by only appellant. (Ex. 12). It too contains the
statement, “All deposits non-refundable on request by both parties.” (Ex. 12).
McHenry gave appellant $500. (Tr. 226). McHenry stated that he never received his
money back from appellant despite numerous calls and excuses. (Tr. 227-28). On
cross examination, McHenry referred to his agreement with appellant as a contract.
(Tr. 228-29).
{¶101} Werneke, the fifth victim, testified that appellant approached him in
March 2008 at his place of business, Allstate Insurance Company, about sponsoring
a car show to be held every other weekend in the Olgivie Plaza parking lot from April
through September. (Tr. 233). Werneke paid appellant $400. (Tr. 234). Appellant
presented Werneke with a contract setting out the terms. (Ex. 5). Only appellant
signed the contract. (Ex. 5). Werneke contacted appellant several times in March
and April to make sure things were on track and appellant repeatedly assured him
that they were. (Tr. 242). After a few show dates had come and gone without a
show, appellant told Werneke that the cancellations were due to the death of his
mother and either his mother-in-law or aunt. (Tr. 243). Werneke eventually asked for
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his money back. (Tr. 244). Appellant told Werneke he would return the $400, but he
never did. (Tr. 247).
{¶102} Detective McKenzie of the St. Clair Police Department testified that he
received complaints from Gresh, Werneke, McHenry, and Gorby regarding appellant.
(Tr. 256, 258, 260, 261). They all told Detective McKenzie that they had paid
appellant for car show sponsorships and the car shows never took place. (Tr. 257-
58). After speaking with Gresh and Werneke, Detective McKenzie contacted
appellant who indicated to him that he was going to reimburse them. (Tr. 259).
{¶103} In his defense, appellant called three witnesses. Shreve was the first
to testify. Shreve has performed at many of appellant’s car shows. Shreve stated
that at these shows, appellant would hand out dash plaques and other items with
sponsors’ names on them. (Tr. 279). On cross examination, Shreve testified
regarding his last performance with appellant where he did not get paid due to a
dispute over whether the host of the show or appellant was to pay him. (Tr. 285-86).
He also stated that appellant never contacted him to participate in any car shows in
Columbiana County. (Tr. 288).
{¶104} Winfred Murphy was appellant’s next witness. Murphy has helped
appellant set up equipment for car shows since 1987. (Tr. 291-92). He stated that at
the shows appellant plays music and passes out trophies and plaques. (Tr. 292).
Murphy stated that he prepared to do a show at East of Chicago Pizza but that the
owner wanted his money back. (Tr. 293). Murphy also testified that appellant’s
father passed away in April 2008. (Tr. 293-94).
{¶105} Pam Foster was the final witness. Foster owns a trophy shop. She
testified that appellant ordered 300-350 car show trophies from her. (Tr. 304-305).
She stated that he only paid for about half of them. (Tr. 305-306).
{¶106} This evidence is sufficient to support appellant’s convictions. As to
each theft offense, the victim testified that he gave appellant a certain sum of money,
that appellant promised to hold car/bike shows, that appellant promised the victim
that he would receive all of his money back, and that appellant never held the shows
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and never refunded the money. Also, the witnesses testified as to the excuses
appellant used for not holding the shows and how appellant stated he would refund
their money but never did. This evidence, when construed in the light most favorable
to the state, goes to show that appellant purposely deprived the victims of their
money by knowingly exerting control over it by deception, in other words promising to
hold the car shows with no intent of ever doing so.
{¶107} Thus, sufficient evidence exists to support appellant’s convictions.
{¶108} Appellant also alleges that the jury’s verdict was against the manifest
weight of the evidence. He contends that the state convinced the jury to convict him
of theft by cumulating the evidence and suggesting that he stole $4,000 from the
good people of Columbiana County (Tr. 311) and suggesting that they simply trust
the prosecutor and substitute his experience for their own judgment (Tr. 310).
{¶109} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the jury 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. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
{¶110} Yet granting a new trial is only appropriate in extraordinary cases
where the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses’ credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
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Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[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. No. 99-CA-149, 2002-Ohio-1152.
{¶111} Appellant contends the jury found him guilty because the state
cumulated the evidence against him. However, each victim gave independent
testimony against appellant explaining how appellant made promises to them, took
their money, and never followed through. They also each gave testimony as to how
their suspicions were aroused and how they came to believe that appellant never
intended to hold the promised car/bike shows. Additionally, each victim
independently went to the police and filed a complaint against appellant. No
evidence contradicted that of the victims.
{¶112} Appellant also asserts that the prosecutor told the jury to trust him and
substitute his experience for their own judgment. However, a review of the cited
transcript page does not reveal any such suggestion by the prosecutor. (Tr. 310).
The closest statement that can be found is where the prosecutor states, “if it’s too
good to be true, it’s not true.” (Tr. 310). Regardless of what the prosecutor said or
did not say in closing arguments, there is no indication that the jury’s verdict was
against the weight of the evidence.
{¶113} As such, the manifest weight of the evidence supports the jury’s
verdict.
{¶114} Accordingly, appellant’s seventh and eighth assignments of error are
without merit.
{¶115} Appellant’s ninth assignment of error states:
{¶116} “DEFENDANT/APPELLANT WAS DENIED HIS RIGHT TO DUE
PROCESS AND A FAIR TRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT.”
{¶117} Appellant asserts here that his trial was filled with prosecutorial
misconduct. He points to those alleged errors raised in his second, third, fourth, and
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fifth assignments of error as constituting prosecutorial misconduct. Appellant also
refers to certain comments by the prosecutor during his opening statement and
closing argument.
{¶118} Appellant failed to object to the comments he now characterizes as
misconduct. A failure to object to alleged prosecutorial misconduct generally waives
all but plain error; however, a defendant's claim that he was denied effective
assistance of counsel eliminates the requirement that an objection be made in order
to preserve an error for appeal. Carpenter, 116 Ohio App.3d at 621.
{¶119} The test for prosecutorial misconduct is whether the conduct
complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d
329, 332, 715 N.E.2d 136 (1999). In reviewing a prosecutor's alleged misconduct, a
court should look at whether the prosecutor's remarks were improper and whether
the prosecutor's remarks affected the appellant's substantial rights. State v. Smith,
14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he touchstone of analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna, 95 Ohio
St.3d 285, 2002-Ohio-2221, ¶61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102
S.Ct. 940 (1982). An appellate court should not deem a trial unfair if, in the context of
the entire trial, it appears clear beyond a reasonable doubt that the jury would have
found the defendant guilty even without the improper comments. State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, ¶121.
{¶120} Appellant takes issue with three remarks by the prosecutor. First,
during his opening statement, the prosecutor twice referred to appellant as a “con
man.” (Tr. 109, 114). Second, appellant points to the prosecutor’s remark during
closing argument that, “[e]verybody has heard about these scams, the F.B.I.
investigates them all the time.” (Tr. 310-11). Finally, appellant points to the
prosecutor’s closing remark:
{¶121} “This guy is good at what he does, see. Con men identify those
persons that they think that they can extract the money out of. Don’t you be conned
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by him. Don’t you pony up a check for seven hundred and fifty dollars to this guy.
Don’t buy what he’s selling.” (Tr. 318).
{¶122} Appellant cannot show prejudice resulting from these statements.
While the comments may have been inappropriate, the evidence clearly supported
the jury’s verdict. As discussed in detail in appellant’s seventh and eighth
assignments of error, the jury had more than ample evidence on which to convict
appellant. These statements by the prosecutor would have been inconsequential to
the jury in reaching their verdict.
{¶123} Accordingly, appellant’s ninth assignment of error is without merit.
{¶124} Appellant’s tenth assignment of error states:
{¶125} “THE TRIAL COURT’S SENTENCES ARE CONTRARY TO LAW.”
{¶126} Appellant contends that the trial court failed to consider the overriding
purposes of sentencing, the need to protect the public, and the need to punish the
offender as mandated by R.C. 2929.11(A) and (B) and failed to consider the factors
that made his conduct more or less serious as mandated by R.C. 2929.12(B) and
(C). Appellant also contends that the court failed to consider R.C. 2929.13(A), which
prohibits the court from imposing a sentence that is unnecessarily burdensome on
state resources.
{¶127} Our review of felony sentences is a limited, two-fold approach, as
outlined in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-
4912, ¶26. First, we must examine the sentence to determine if it is “clearly and
convincingly contrary to law.” Id. (O'Conner, J., plurality opinion). In examining “all
applicable rules and statutes,” the sentencing court must consider R.C. 2929.11 and
R.C. 2929.12. Id. at ¶¶ 13-14. (O'Conner, J., plurality opinion). If the sentence is
clearly and convincingly not contrary to law, the court's discretion in selecting a
sentence within the permissible statutory range is subject to review for abuse of
discretion. Id. at ¶ 17. (O'Conner, J., plurality opinion).
{¶128} Here appellant was convicted of four fifth-degree felonies and one
first-degree misdemeanor. The possible prison terms for a fifth-degree felony are six,
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seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). On each of
the four felonies, the trial court sentenced appellant to six months in prison. The
maximum sentence for a first-degree misdemeanor is 180 days, or six months. R.C.
2929.24(A)(1). The trial court sentenced appellant to six months in the county jail on
the misdemeanor. Thus, each of appellant’s individual sentences was within the
appropriate statutory range.
{¶129} The court was also required to consider R.C. 2929.11 (the overriding
purposes of sentencing) and R.C. 2929.12 (the seriousness and recidivism factors) in
sentencing appellant. Appellant asserts the court failed to do so.
{¶130} While the court failed to specifically mention these statutes, it was not
required to do so. This court has stated:
{¶131} “[W]e hold that reversal is not automatic where the sentencing court
fails to provide reasons for its sentence or fails to state at sentencing or in a form
judgment entry, ‘after considering R.C. 2929.11 and 2929.12’. We return to the
Adams rule that a silent record raises the rebuttable presumption that the sentencing
court considered the proper factors. We hereby adopt the Second District's statement
that where the trial court's sentence falls within the statutory limits, ‘it will be
presumed that the trial court considered the relevant factors in the absence of an
affirmative showing that it failed to do so’ unless the sentence is ‘strikingly
inconsistent’ with the applicable factors. [State v.] Sloane, 2d Dist. Nos.2005CA79,
2006CA75[, 2007-Ohio-130] at ¶ 20.” (Emphasis added.) State v. James, 7th Dist.
No. 07-CO-47, 2009-Ohio-4392, ¶50. See also, State v. Toney, 7th Dist. No. 10-MA-
20, 2011-Ohio-2464; State v. Watson, 7th Dist. No. 09-MA-62, 2011-Ohio-1178.
{¶132} Furthermore, although the court did not mention the statutes by name,
it did make several findings in accordance with the statutory factors. For instance, in
its sentencing judgment entry the court found that appellant has an extensive criminal
history of thefts by deception dating back to 1996 (R.C. 2929.12(D)(2)); appellant has
shown no remorse for his actions (R.C. 2929.12(D)(5)); and appellant was on
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community control when these five offenses were committed (R.C. 2929.12(D)(1)).
These findings indicate that the court did indeed consider the statutory factors.
{¶133} Hence, appellant’s sentence is not contrary to law.
{¶134} Next, we must consider whether the trial court abused its discretion in
sentencing appellant.
{¶135} Appellant’s only argument on this point is that the court failed to
consider R.C. 2929.13(A), which provides in relevant part: “The sentence shall not
impose an unnecessary burden on state or local government resources.”
{¶136} “‘Just what constitutes a “burden” on state resources is undefined by
the statute, but the plain language suggests that the costs, both economic and
societal, should not outweigh the benefit that the people of the state derive from an
offender's incarceration.’” State v. Goins, 7th Dist. No. 06-MA-131, 2008-Ohio-1170,
¶35, quoting State v. Vlahopoulos, 154 Ohio App.3d 450, 2003-Ohio-5070, ¶5.
{¶137} It would seem society would benefit from the incarceration of a person
who has an extensive history of thefts by deception. Then the person would not be
out on the street deceiving more people into giving him their money. Thus, there is
no indication that the trial court abused its discretion in this respect.
{¶138} Accordingly, appellant’s tenth assignment of error is without merit.
{¶139} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.