State v. Smith , 2016 Ohio 7566 ( 2016 )

[Cite as State v. Smith, 2016-Ohio-7566.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Sheila G. Farmer, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 15CAA 0077
ERIC L. SMITH :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County
Court of Common Pleas, Case No. 15CR-
I04-0144C
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 28, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL O'BRIEN ERIC ALLEN
ANDREW BIGLER 4605 Morse Road, Suite 201
140 North Sandusky Street Gahanna, OH 43230
Delaware, OH 43015
Delaware County, Case No. 15CAA 0077 2
Gwin, J.,
{¶1} Appellant Eric Smith “[Smith”] appeals his convictions and sentences after
a jury trial in the Delaware County Court of Common Pleas on one count of aggravated
burglary, a felony of the first degree, in violation of RC. 2911.11 (A) (2), with a firearm
specification, a repeat violent offender specification and a forfeiture specification; one
count of kidnapping, a felony of the first degree, in violation of R.C. 2905.01, with a firearm
specification, a repeat violent offender specification and a forfeiture specification; one
count of aggravated robbery, a felony of the first degree, in violation of R.C. 2911.01 (A)
(1), with a firearm specification, a repeat violent offender specification and a forfeiture
specification; one count of having weapons under disability, a felony of the third degree,
in violation of R.C. 2923.13 (A)(2); one count of aggravated robbery, a felony of the first
degree, in violation of R.C. 2911.01 (A) (1), with a firearm specification, a repeat violent
offender specification and a forfeiture specification; one count of felonious assault, a
second degree felony, in violation of R.C. 2903.11 (A) (2), with a firearm specification, a
repeat violent offender specification and a forfeiture specification; and one count of having
weapons under disability, a felony of the third degree, in violation of R.C. 2923.13 (A) (2).
Facts and Procedural History
{¶2} On January 3, 2015, and into the morning of January 4, 2015, two
individuals broke into the home of David McCourt. They bound him with zip tie handcuffs
and laid him down in front of his television. These two people took cash, five guns, and
a Rolex watch. McCourt waited until he was sure that the people who broke into his home
were gone. He then went to the Powell Police Department and could not find anyone
there. McCourt is seen on the surveillance tape at the police department at around 5:00
Delaware County, Case No. 15CAA 0077 3
a.m. (2T. at 234-235). He leaves and goes to a friend's house in Grove City, Ohio. He
buys a new cell phone and calls the police. He delayed in calling the police because he
was taking bets on a 12:30 p.m. game. (2T. at 228). The police respond to his home in
Delaware County and begin an investigation. McCourt could not identify anyone who
robbed him on that day.
{¶3} McCourt testified that $33,000.00 and a Rolex watch were among the items
taken from his home on January 3, 2015. McCourt further testified that one of the
assailants had a revolver and the other a semi-automatic handgun with a long magazine
or clip. McCourt described the offenders as one being taller and one shorter, that the
assailants wore all black/dark clothing, hoods, masks and gloves, and stated the offenders
from the second incident appeared to be the same as from the first (2T. at 188; 190; 3T. at
358; 361).
{¶4} Dennis Waddell testified that in connection with the first incident on January
3, 2015, he provided Smith with the victim's address. Smith’s cousin, Wayne Kelso, is
seen on the surveillance tape on January 5, 2015, one day after the first incident, trying
to pawn McCourt’s Rolex watch. Waddell testified that it was Smith who drove him and
Kelso to the pawnshop. (4T. at 562). Smith purchased a Dodge Charger for $6,145.00
in cash on January 26, 2015. (4T. at 586). Smith spends $12,000.00 over the course of
two days after the first incident and leading up to the second incident. McCourt testified
that the money taken from his house was in $100.00 bills. (3T. at 373). $1,000.00 in
$100.00 bills was recovered from Smith’s car. (4T. at 580).
Delaware County, Case No. 15CAA 0077 4
{¶5} Smith was pulled over for a traffic violation on March 16, 2015. The officer
observed flex ties formed as handcuffs, gloves, and a ski mask in Smith’s car. (2T. at 257;
263).
{¶6} On March 27, 2015, two individuals again break into Mr. McCourt’s home in
Delaware County, Ohio. This time McCourt is pistol-whipped in his front yard. McCourt
attempted to shoot his attackers but the gun jammed. McCourt runs to his neighbor's
home and calls 9-1-1.
{¶7} Smith, Tammy Wright and Dennis Waddell are all caught together moments
after the second incident, within a mile of the McCourt's home with black ski masks, a
Glock handgun with an extended magazine, and zip ties formed as handcuffs in a vehicle
fitting the description McCourt gave to officers. (3T. at 362; 390; 412-420; 433-437; 456-
458). Waddell testified that Smith showed him a black revolver on the way to the McCourt’s
home on March 27, 2015. (4T. at 515).
{¶8} Tammy Wright testified she picked up both Waddell and Smith and drove
them to McCourt’s neighborhood on March 27, 2015. (3T. at 409-415). Wright was driving
a green Jeep Cherokee. She observed Smith and Waddell get out of a Dodge Charger.
Both Waddell and Smith were dressed in black from head to toe. (3T. at 415).
{¶9} Smith and Waddell each called Wright to pick them up after the incident. (3T.
at 418-419). Smith and Waddell were not at the same location when she picked them up.
(3T. at 419-420). A .40 caliber Glock with a long magazine was recovered from Wright’s
Jeep Cherokee. (3T. at 442; 452). Waddell admitted that he had a Glock handgun with an
extend magazine. (4T. at 514).
Delaware County, Case No. 15CAA 0077 5
{¶10} McCourt gave a description of guns used in the first and second robbery.
That description is similar to the gun that witnesses testified Smith had on him and similar
to the gun found in the vehicle after the second incident. (2T. at 195-196; 3T. at 358-
359; 1T. at 514-515).
{¶11} Following deliberation, the jury found Smith guilty of all charges and specifications
in the indictment.
{¶12} The trial court sentenced Smith on count one to eight years in addition to the
three-year firearm specification. As to count two, Smith was sentenced to five years in addition
to the three-year gun specification. As to count three, Smith was sentenced to a term of three
years in prison to be served concurrently with count one. As to count five, Smith was sentenced
to a term of twelve months in prison. This is to be served concurrently with count one. As to
count six, Smith was sentenced to a term of nine years to be served consecutive to counts one
and two as well as an additional three-year gun specification. As to count seven, Smith was
sentenced to a term of six years to be served consecutively to counts one, two, and six. He
was also sentenced on a firearm specification.
Assignments of Error
{¶13} Smith raises nine assignments of error,
{¶14} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED HIS
REQUEST FOR A CONTINUANCE.
{¶15} “II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL
UNDER THE FIFTH AND SIXTH AMENDMENTS TO THE FEDERAL CONSTITUTION
MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT
WHEN IT DENIED HIS REQUEST FOR A CONTINUANCE.
Delaware County, Case No. 15CAA 0077 6
{¶16} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
APPELLANT'S RIGHT TO A FAIR TRIAL UNDER THE FIFTH AMENDMENT TO THE
FEDERAL CONSTITUTION MADE APPLICABLE TO THE STATE OF OHIO BY THE
FOURTEENTH AMENDMENT WHEN IT LIMITED CROSS-EXAMINATION REGARDING
GAMBLING OF THE PROSECUTING WITNESS.
{¶17} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED
TESTIMONY REGARDING BAD ACTS EVIDENCE AGAINST THE APPELLANT.
{¶18} “V. THE TRIAL COURT DENIED APPELLANT HIS RIGHT TO DUE
PROCESS GUARANTEED BY THE FIFTH AMENDMENT MADE APPLICABLE TO THE
STATE OF OHIO BY THE FOURTEENTH AMENDMENT WHEN IT ALLOWED OTHER
ACTS EVIDENCE TO BE PRESENTED.
{¶19} “VI. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
GUARANTEED BY THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION MADE
APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT.
{¶20} “VII. THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO
CONVICT THE APPELLANT IN VIOLATION OF THE FOURTEENTH AMENDMENT AND
IN DIRECT VIOLATION OF THE HOLDING OF JACKSON V. VIRGINIA.
{¶21} “VIII. THE CONVICTIONS IN THIS MATTER WERE NOT SUPPORTED BY
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶22} “XI. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE REQUISITE
THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO CONSECUTIVE
Delaware County, Case No. 15CAA 0077 7
SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE FACTORS LISTED IN
2929.14(C)(4)(a)-(c) APPLIED.”
I. & II.
{¶23} In his first assignment of error, Smith contends the trial court abused its
discretion in denying his attorney’s request for a continuance made the morning of trial.
In his second assignment of error, Smith argues that the trial court violated his right to
due process by denying counsel’s request for a continuance made the morning of trial.
{¶24} Ordinarily a reviewing court analyzes a denial of a continuance in terms of
whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84
S. Ct. 841, 11 L.Ed.2d 921(1964). If, however, the denial of a continuance is directly linked
to the deprivation of a specific constitutional right, some courts analyze the denial in terms
of whether there has been a denial of due process. Bennett v. Scroggy, 793 F.2d 772
(6th Cir 1986). A defendant has an absolute right to prepare an adequate defense under
the Sixth Amendment of the United States Constitution and a right to due process under
the Fifth and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854(6th
Cir. 2000). The United States Supreme Court has recognized that the right to offer the
testimony of witnesses and compel their attendance is constitutionally protected.
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L.Ed.2d 1019(1967). The
Ohio Supreme Court recognized that the right to present a witness to establish a defense
is a fundamental element of due process of law. Lakewood v. Papadelis, 32 Ohio St. 3d
1, 4-5, 511 N.E.2d 1138(1987). A trial court's failure to grant a continuance to enable a
defendant to exercise his constitutionally protected right to offer the testimony of
witnesses and compel their attendance may, in some circumstances, constitute a denial
Delaware County, Case No. 15CAA 0077 8
of due process. Mackey v. Dutton, 217 F.3d 399, 408(6th Cir 2000); Bennett v. Scroggy,
supra, 793 F.2d at 774. See also, State v. Wheat, 5th Dist. Licking No. 2003-CA-00057,
2004-Ohio-2088 at ¶ 16.
{¶25} Among the factors to be considered by the court in determining whether the
continuance was properly denied are: (1) the length of the requested delay, (2) whether
other continuances had been requested and granted, (3) the convenience or
inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was for
legitimate reasons or whether it was “dilatory, purposeful or contrived”, (5) whether the
defendant contributed to the circumstances giving rise to the request, (6) whether denying
the continuance will result in an identifiable prejudice to the defendant's case, and (7) the
complexity of the case. Powell v. Collins, 332 F.3d 376, 396(6th Cir 2003); State v. Unger,
67 Ohio St. 2d 65, 67-68, 423 N.E.2d 1078(1981), 1080; State v. Wheat, supra at ¶ 17.
{¶26} On a petition for habeas corpus relief, the federal courts have enumerated
a slightly different set of factors that a reviewing court should consider in determining
whether an accused was deprived of his rights to compulsory process and due process
of law by denial of a motion for continuance: “[1] the diligence of the defense in
interviewing witnesses and procuring their testimony within a reasonable time, [2] the
specificity with which the defense is able to describe their expected knowledge or
testimony, [3] the degree to which such testimony is expected to be favorable to the
accused and [4] the unique or cumulative nature of the testimony.” Hicks v. Wainwright,
633 F.2d 1146, 1149(5th Cir 1981) (quoting United States v. Uptain, 531 F.2d 1281,
1287(5th Cir 1976); see, also, Bennett v. Scroggy, supra, 793 F.2d at 774; State v. Wheat,
supra at ¶ 18.
Delaware County, Case No. 15CAA 0077 9
{¶27} In the case at bar, defense counsel received the allocution of co-defendant
Tammy Wright the day before trial. Defense counsel conceded that that was proper and
no continuance was requested. Counsel’s request was because Mr. Waddell decided to
accept a plea offer the day of trial. Smith’s attorney was present when Waddell made his
allocution.
{¶28} The trial court noted, "But we've all heard the statement from Mr. Waddell this
morning, I can't imagine there's information in there that was surprising to anyone, certainly it was news
to me but that's to be expected, but in terms of parties who have looked at discovery in the case, I
didn't get the sense that anything that Mr. Waddell said was unexpected today.” 1T. at 21.
{¶29} The Court further stated that there was 15-20 witness present for trial, the
parties knew about the trial date for a while, and that the Court had a very busy trial
docket, thus causing inconvenience to the witnesses, jurors and the court. Furthermore,
there had already been two continuances granted in the case, as well as a brief recess
granted before trial to allow Smith to decide if he wanted to proceed or take a plea deal.
{¶30} Smith's defense counsel in her motion failed to show how another
continuance would allow her to effectively prepare for trial or that denying a continuance
would prejudice Smith. In addition, Dennis Waddell had been a codefendant since the
start of the case. As the Court stated, the possibility that a co-defendant could become
a witness is a possibility at any point.
{¶31} As evidenced in the transcript, it appears that defense counsel was provided
a copy of the transcribed allocution of Dennis Waddell. (4T. at 534-540). In addition, she
in fact was able to effectively cross Mr. Waddell on his inconsistent statements. Counsel
Delaware County, Case No. 15CAA 0077 10
effectively crossed examined Waddell regarding prior violent convictions and participation
in illegal activities, all factors the jury could consider in weighing Mr. Waddell's testimony.
{¶32} There is no evidence that more time would have better prepared defense
counsel in cross-examining Mr. Waddell or would have uncovered exculpatory evidence
on Smith’s behalf. Smith has failed to demonstrate how the failure to grant the
continuance actually prejudiced his defense.
{¶33} After careful examination of the record, we find that the trial court did not
abuse its discretion in denying Smith's request for a continuance. The trial court had an
interest in controlling its own docket and ensuring the prompt and efficient administration
of justice. See Unger, 67 Ohio St. 2d at 67, 423 N.E.2d 1078. The trial court clearly felt
that competent counsel adequately represented Smith and that there was no reason to
delay the trial. As such, we find that the trial court did not abuse its discretion when it
denied the motion to continue the trial and we find no violation of Smith’s due process
rights.
{¶34} Smith’s first and second assignments of error are overruled.
III.
{¶35} In his third assignment of error, Smith contends the trial court did not allow
questioning into whether or not the victim, David McCourt, violated the law by taking bets
or running a casino therefore denying his right to confront his accuser as guaranteed by
the Sixth Amendment. [Appellant’s Brief at 12].
{¶36} Smith’s cites the following exchange to support his argument that the trial
court limited his cross-examination,
Delaware County, Case No. 15CAA 0077 11
Q — because you were embarrassed to divulge into your illegal
activity such as gambling?
MR. BIGLER: Objection.
MR. PENKAL: Objection.
THE COURT: Well.
PENKAL: As to the commentary.
THE COURT: I don’t think the witness made any testimony
about the activity being illegal.
MS. SHARP BERNARDO: I will rephrase, Your Honor.
3T. at 379-380.
{¶37} The Sixth Amendment of the United States Constitution guarantees the right
of an accused in a criminal prosecution "to be confronted with the witnesses against him."
Davis v. Alaska, 415 U.S. 308, 353, 94 S. Ct. 1105, 39 L. Ed. 2d 347(1974). That right,
incorporated in the Fourteenth Amendment and therefore available in state proceedings
under Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923(1965) includes the
right to conduct reasonable cross-examination. Davis, 415 U.S. at 315-316, 94 S.Ct
1105, 39 L. Ed. 2d 347.
Reasonable cross-examination includes not only the opportunity to
impeach a witness: “[c]ross-examination is the principal means by which the
believability of a witness and the truth of his testimony are tested. Subject
always to the broad discretion of a trial judge to preclude repetitive and
unduly harassing interrogation, the cross-examiner is not only permitted to
delve into the witness' story to test the witness' perceptions and memory,
Delaware County, Case No. 15CAA 0077 12
but the cross-examiner has traditionally been allowed to impeach, i.e.,
discredit, the witness”. Davis, 415 U.S. at 316, but also the exposure of a
witness' motivation in testifying: ‘A more particular attack on the witness'
credibility is effected by means of cross-examination directed toward
revealing possible biases, prejudices, or ulterior motives of the witness as
they may relate directly to issues or personalities in the case at hand. The
partiality of a witness is subject to exploration at trial, and is ‘always relevant
as discrediting the witness and affecting the weight of his testimony.’ 3A J.
Wigmore Evidence Section 940, p. 775 (Chadbourn rev. 1970). We have
recognized that the exposure of a witness' motivation in testifying is a proper
and important function of the constitutionally protected right of cross-
examination. [415 U.S. 317]”.
Greene v. McElroy, 360 U.S. 474, 496, 3 L. Ed. 2d 1377, 79 S.Ct. 1400(1959). See also,
Davis, 415 U.S. at 316-317; Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 48, 102 L.Ed.2d
513(1988); Delaware v. Van Arsdall, 475 U.S. 673, 678-679, 106 S. Ct. 1431, 89 L. Ed. 2d
674 (1986).
{¶38} Of course, a trial court can impose reasonable limits upon cross-
examination:
It does not follow, of course, that the Confrontation Clause of the Sixth
Amendment prevents a trial judge from imposing any limits on defense
counsel's inquiry into the potential bias of a prosecution witness. On the
contrary, trial judges retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-examination based
Delaware County, Case No. 15CAA 0077 13
on concerns about, among other things, harassment, prejudice, confusion
of the issues, the witness' safety, or interrogation that is repetitive or only
marginally relevant. And as we observed earlier this Term, “the
Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.” Delaware v. Fensterer (1985),
474 U.S. 15, 20, 106 S. Ct. 292 (per curiam) (emphasis in original).
Van Arsdall, supra, 475 U.S. at 679.
{¶39} In determining whether the confrontation clause has been violated, the
focus of the prejudice inquiry "must be on the particular witness, not on the outcome of
the entire trial." Van Arsdall, supra 475 U.S. at 680. In Van Arsdall, supra, the United
States Supreme Court held: “[w]e think that a criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form of bias on the part
of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska,
supra, at 318, 94 S. Ct. 1105.” Van Arsdall, supra at 475 U.S. 680; See, also, Olden,
supra.
{¶40} In Van Arsdall, supra, the Court stated,
The correct inquiry is whether, assuming that the damaging potential
of the cross-examination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable doubt.
Whether such an error is harmless in a particular case depends upon a host
Delaware County, Case No. 15CAA 0077 14
of factors, all readily accessible to reviewing courts. These factors include
the importance of the witness' testimony in the prosecution's case, whether
the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution's case. Cf. Harrington, 395 U.S., at
254, 23 L. Ed. 2d 284, 89 S. Ct. 1726; Schneble v. Florida, 405 U.S. at 432,
31 L. Ed. 2d 340, 92 S. Ct. 1056.
Van Arsdall, 475 U.S. at 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674.
{¶41} In the case at bar, the trial court simply noted that the witness had not “made
any testimony about the activity being illegal.” The trial court did not issue a blanket
prohibition against his testimony concerning gambling or other illegal activity.
{¶42} In any event, Smith cannot show that he was prejudiced by the trial court’s
ruling because McCourt testified on direct and cross examination regarding his gambling
operation. McCourt disclosed that he would take bets from wealthy individuals, and either
pay them if they won, or keep the money if they lost. McCourt admitted not wanting the
police to search his home without him there, admitted he lied to police about how much
money was taken because he did not want to disclose his gambling operation, and
admitted he sought the advice of his attorney regarding what police may find regarding
his gambling operation. 2T. at 201-202; 221-222; 228; 332; 3T. at 380-381.
{¶43} We note that any error will be deemed harmless if it did not affect the
accused's “substantial rights.” Before constitutional error can be considered harmless,
Delaware County, Case No. 15CAA 0077 15
we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”
United States v. Chapman, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L.Ed.2d 705(1967).
{¶44} In the case at bar, the trial court did not restrict Smith from cross-examining
McCourt on his gambling activities. We find that any error was harmless beyond a
reasonable doubt.
{¶45} Smith’s third assignment of error is overruled.
IV. & V
{¶46} In his fourth assignment of error, Smith argues that the trial court violated
Evid.R. 404(B) by allowing Dennis Waddell to testify to prior acts of theft by Smith. In his
fifth assignment of error, Smith argues that he was denied due process by the admission
of other acts evidence.
{¶47} The trial court has broad discretion in the admission and exclusion of
evidence, including evidence of other acts under Evid.R. 404(B). State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. Unless the trial court has “clearly
abused its discretion and the defendant has been materially prejudiced thereby, this court
should be slow to interfere” with the exercise of such discretion. State v. Hymore, 9 Ohio
St.2d 122, 128, 224 N.E.2d 126 (1967). We have defined “abuse of discretion” as an
“unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action that
no conscientious judge could honestly have taken.” State v. Brady, 119 Ohio St. 3d 375,
2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.
{¶48} During the first incident, significant amounts of cash were taken from McCourt's home
of approximately $33,000.00. In the case at bar, Smith made large, all cash purchases of
approximately $12,000.00 immediately after the first incident. Smith’s purchases continued until
Delaware County, Case No. 15CAA 0077 16
right up until the second incident. At trial, the defense attempted to counter the state’s
argument that the money Smith used was stolen. The defense portrayed Smith as a hard
working individual, who came into this cash through legitimate means, and that the timing was
merely coincidental. The state argued that the defense had opened the door to ask the witness if
he was aware of how Smith made money.
{¶49} Upon voir dire of Waddell outside the presence of the jury, Waddell testified about
Smith stealing packages and selling them.
{¶50} The trial court agreed with the state that the defense had opened the door to this line
of questioning.
{¶51} Evid.R. 404(A) provides that evidence of a person’s character is not admissible to
prove the person acted in conformity with that character. Evid.R. 404(B) sets forth an exception to
the general rule against admitting evidence of a person’s other bad acts. The Rule states as
follows: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.”
{¶52} In State v. Williams, 134 Ohio St. 3d 521, 983 N.E.2d 1278, 2012–Ohio–5695, the
Ohio Supreme Court stated that trial courts should conduct a three-step analysis when considering
the issue of “other acts” evidence:
The first step is to consider whether the other acts evidence is relevant to
making any fact that is of consequence to the determination of the action more or
less probable than it would be without the evidence. Evid.R. 401. The next step is
to consider whether evidence of the other crimes, wrongs, or acts is presented to
Delaware County, Case No. 15CAA 0077 17
prove the character of the accused in order to show activity in conformity therewith
or whether the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B). The third step is to consider whether the probative
value of the other acts evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R. 403.
Id. at ¶ 20.
{¶53} Furthermore, “other acts” evidence is admissible only if there is substantial proof that
the alleged other acts were committed by the defendant and such evidence tends to show one of
the matters enumerated in Evid.R. 404(B). State v. Wagner, 5th Dist. Licking 03 CA 82, 2004–
Ohio–3941, ¶ 43, citing State v. Echols, 128 Ohio App. 3d 677, 692, 716 N.E.2d 728 (1st Dist.
1998). This Court has recognized that the Ohio Revised Code does not define “substantial proof”
in this context. See State v. Burden, 5th Dist. Stark No. 2012–CA–00074, 2013–Ohio–1628, ¶ 58.
This Court also summarized as follows in State v. King, 5th Dist. Richland No. 08–CA–335, 2010–
Ohio–4844: “We * * * do not believe that the substantial proof requirement necessitates that
independent evidence corroborate other acts testimony. Instead, we believe that the substantial
proof requirement is satisfied if at least one witness who has direct knowledge of the other act can
testify to the other act. The jury may then fulfill its duty and evaluate the witness’s testimony and
credibility. * * *.” Id. at ¶ 45.
{¶54} In the case at bar, the state did not submit evidence of Smith’s prior acts to show
Smith acted in conformity with his prior behavior. Rather, the evidence was submitted to counter
the impression that Smith came into substantial sums of money through legitimate means.
Delaware County, Case No. 15CAA 0077 18
{¶55} In State v. Dunivant, Stark App. No. 2003CA00175, 2005-Ohio-1497, the Ninth
District Court of Appeals, sitting by assignment for this Court, provided a detailed analysis of the
issue sub judice:
“Under the rule of curative admissibility, or the ‘opening the door’ doctrine, the
introduction of inadmissible evidence by one party allows an opponent, in the court’s
discretion, to introduce evidence on the same issue to rebut any false impression
that might have resulted from the earlier admission.” United States v. Whitworth
(C.A.9, 1988), 856 F.2d 1268, 1285. See, also, United States v. Moody (C.A.6,
1967), 371 F.2d 688, 693 (“With the door opened this widely in favor of [defendant],
we cannot say that the District Judge’s rulings in favor of appellee’s proffered
hearsay on the same subject was an abuse of judicial discretion or constituted
reversible error.”); State v. Croom (Jan. 18, 1996), 8th Dist. No. 67135, at *17
(“Invited error would preclude a defense counsel who induces hearsay evidence on
cross-examination from precluding further hearsay testimony on re-direct
examination.”).
Dunivant, ¶12. Accord, State v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170,
¶42; State v. Collins, 7th Dist. Columbiana No. 10 CO 10, 2011-Ohio-6365, ¶93.
{¶56} In the case at bar, the defense first presented its theory in opening
statement stating,
The State is going to try to have you believe that my client, Eric Smith,
is not a hard working individual, when in fact that is far from the truth.
Specifically, my client has two jobs. He does manual labor through a
janitorial service, has been working there over two years, and independently
Delaware County, Case No. 15CAA 0077 19
sells electronics to try to make extra money to provide for himself and his
family. The State's going to try and argue that it is not merely coincidental
that my client did purchase a car after the alleged incidents of January 4,
2014. However, we stand before you stating that hard earned money
through hard work is not illegal to purchase a vehicle. Just because
someone buys a vehicle with cash does not mean that that vehicle was
purchased through any ill-gotten gains.
1T. at 171.
{¶57} In addition, the defenses sole witness, Nitoryia Goff, also offered testimony
regarding the legitimate means through which Smith came into possession of large
amounts of cash. 5T. at 705-710. Ms. Goff testified to Smith’s IRS Form 1099’s for the
2013 and 2014 tax years. (5T. at 706-707). Further, Goff testified to Smith’s 2013 and
2014 tax returns. (5T. at 707-708). Smith had reported income in the 2014 tax year of
$11,873.00 (5T. at 716-717; 720). However, the tax return presented at trial had not been
signed. (5T. at 720). Smith also made money from selling a car. (5T. at 711). Goff
testified that Smith made money from repairing and selling electronics, and that income
was not reported on his tax returns. (5T. at 708-711).
{¶58} Furthermore, the trial court gave a specific limiting instruction to the jury that
the evidence regarding the theft of packages should be used only for the specific purpose
of determining whether, "the Defendant had significant amounts of cash in the early
months of this year and what the source of that cash may have been, whether from
legitimate employment or something else.” 4T. at 563. The Court further admonished
Delaware County, Case No. 15CAA 0077 20
that the evidence was not to be considered for purposes of showing Smith acted in
conformity or in accordance with that character. (Id.).
{¶59} We cannot conclude that the trial court abused its discretion by allowing the
state, on re-direct examination to elicit reciprocal evidence in order to rebut the impression
that may have resulted. If the state were not permitted to do so, the jury would have been
left with the impression that Smith’s possession of large sums of cash and the purchases
he made were obtained through legitimate sources and merely coincidental to the
incidents involving McCourt. We do not find that the trial court’s ruling was erroneous.
Accordingly, Smith was not denied of fundamental fairness. Coleman v. Mitchell, 244
F.3d 533, 542 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
{¶60} Smith’s fourth and fifth assignments of error are overruled.
VI.
{¶61} In his sixth assignment of error, Smith argues that he was denied the
effective assistance of trial counsel. Specifically, Smith contends his trial counsel was
ineffective because she opened the door to the other acts evidence addressed in Smith’s
fourth and fifth assignments of error.
{¶62} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122
L. Ed. 2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674(1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373(1989).
Delaware County, Case No. 15CAA 0077 21
{¶63} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and Bradley.
Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419, 173 L.Ed.2d 251(2009).
{¶64} Recently, the United States Supreme Court discussed the prejudice prong
of the Strickland test,
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id., at
694, 104 S. Ct. 2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S. Ct.
2052. Counsel’s errors must be “so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id., at 687, 104 S. Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284
(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very adversary process the
right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104
S. Ct. 2052. Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
Delaware County, Case No. 15CAA 0077 22
record, and interacted with the client, with opposing counsel, and with the
judge. It is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell
v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002);
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180
(1993). The question is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466 U.S.,
at 690, 104 S. Ct. 2052.
Harrington v. Richter, __U.S.__, 131 S. Ct. 770, 777-778, 178 L.Ed.2d 624(2011).
{¶65} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley, 42 Ohio St. 3d at 143, 538 N.E.2d 373, quoting Strickland, 466
U.S. at 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
{¶66} 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, 867 N.E.2d 903, 2007-Ohio-1557, ¶ 183(11th Dist.). 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,
Delaware County, Case No. 15CAA 0077 23
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 at ¶ 21.
{¶67} 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. “Poor 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.
{¶68} Even assuming that Smith could demonstrate that defense counsel
performed deficiently, he must also prove that he was prejudiced by counsel's deficient
performance. Strickland, 466 U.S. at 691–692, 104 S. Ct. 2052, 80 L. Ed. 2d 674. See,
State v. Obermiller, Oh. Sup. Ct. No. 2011-0857, 2016-Ohio-1594, ¶ 93 (Apr. 20, 2016).
{¶69} To show prejudice, he must prove that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694, 104 S. Ct. 2052. The prejudice inquiry, thus, focuses not only
on outcome determination, but also on “whether the result of the proceeding was
fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S. Ct.
838, 122 L. Ed. 2d 180 (1993).
{¶70} In determining whether Smith has indicated a reasonable probability
sufficient to undermine confidence in the outcome of the trial we find it helpful to look to
Delaware County, Case No. 15CAA 0077 24
the standard to be applied in determining harmless error where a criminal defendant
seeks a new trial because of the erroneous admission of evidence.
{¶71} In State v. Morris, 141 Ohio St. 3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,
the Ohio Supreme Court considered the standard to be applied in determining harmless
error where a criminal defendant seeks a new trial because of the erroneous admission
of evidence under Evid.R. 404(B). The court summarized its analysis in the subsequent
decision of State v. Harris, 2015-Ohio-166, ––– N.E.3d ––––, ¶ 37:
Recently, in Morris, a four-to-three decision, we examined the
harmless-error rule in the context of a defendant's claim that the erroneous
admission of certain evidence required a new trial. In that decision, the
majority dispensed with the distinction between constitutional and non-
constitutional errors under Crim.R. 52(A). Id. at ¶ 22–24. In its place, the
following analysis was established to guide appellate courts in determining
whether an error has affected the substantial rights of a defendant, thereby
requiring a new trial. First, it must be determined whether the defendant
was prejudiced by the error, i.e., whether the error had an impact on the
verdict. Id. at ¶ 25 and 27. Second, it must be determined whether the
error was not harmless beyond a reasonable doubt. Id. at ¶ 28. Lastly,
once the prejudicial evidence is excised, the remaining evidence is weighed
to determine whether it establishes the defendant's guilt beyond a
reasonable doubt.
Id. at ¶ 29, 33.
Delaware County, Case No. 15CAA 0077 25
{¶72} There is no indication in light of the overwhelming evidence of Smith’s guilt
that the jury abandoned their oaths and their integrity and found Smith guilty of the crimes
because of the testimony concerning his prior acts of stealing packages and selling them
for money.
{¶73} In any case, the evidence overwhelmingly supports a finding of Smith's guilt.
Smith cannot claim that but for these statements, he would be acquitted. After a thorough
review of the record, we have no doubt that the remaining properly introduced evidence
overwhelmingly establishes defendant's guilt. See Delaware v. Van Arsdall (1986), 475
U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674; State v. Williams (1983), 6 Ohio St. 3d
281, 452 N.E.2d 1323.
{¶74} Smith’s sixth assignment of error is overruled.
VII. & VIII.
{¶75} In his seventh assignment of error, Smith challenges the sufficiency of the
evidence. In his eighth assignment of error, Smith contends his conviction is against the
manifest weight of the evidence produced at trial.
{¶76} Our review of the constitutional sufficiency of evidence to support a criminal
conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979), which requires a court of appeals to determine 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 beyond a reasonable doubt.” Id.; see also
McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming
this standard); State v. Fry, 125 Ohio St. 3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,
¶146; State v. Clay, 187 Ohio App. 3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.
Delaware County, Case No. 15CAA 0077 26
{¶77} Weight of the evidence addresses the evidence's effect of inducing belief.
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. 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. It indicates clearly to the jury that the party having the burden of
proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue, which is to be established
before them. Weight is not a question of mathematics, but depends on its effect in
inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law
Dictionary (6th Ed. 1990) at 1594.
{¶78} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S. Ct. 2211, 72 L. Ed. 2d 652 (1982). However, 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 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.
Delaware County, Case No. 15CAA 0077 27
“[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.
***
“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).
{¶79} Specifically Smith’s main argument is that there was insufficient evidence
to identify him as one of the perpetrator of the crimes.
{¶80} McCourt testified that $33,000.00 and a Rolex watch were among the items
taken from his home on January 3, 2015. McCourt further testified that one of the
assailants had a revolver and the other a semi-automatic with a long magazine or clip.
McCourt gave a description of the offenders being one taller and one shorter, that the
assailants wore all black/dark clothing, hoods, masks and gloves, and stated the offenders
from the second incident appeared to be the same as from the first (2T. at 188; 190; 3T. at
358; 361). McCourt gave a description of guns used in the first and second robbery, similar
to the ones testified at trial that Smith had on him and similar to the one found in the
vehicle after the second incident. (2T. at 195-196; 3T. at 358-359; 1T. at 514-515).
Delaware County, Case No. 15CAA 0077 28
{¶81} Dennis Waddell testified that in connection with the first incident on January
3, 2015, he provided Smith with the victim's address. Smith’s cousin, Wayne Kelso, is
seen on the surveillance tape on January 5, 2015, one day after the first incident, trying
to pawn the victim's watch. Waddell testified that it was Smith who drove him and Kelso
to the pawnshop. (4T. at 562). Smith spends over the course of two days after the first
incident and leading up to the second incident, approximately $12,000.00 in cash,
including the purchase of the Dodge Charger for $6,145.00 in cash on January 26, 2015.
(4T. at 586). $1,000.00 in $100.00 bills was recovered from the car. (4T. at 580).
McCourt testified that the money taken from his house was in $100.00 bills. (3T. at 373).
{¶82} Smith was pulled over for a traffic violation on March 16, 2015, after the first
incident and just prior to the second incident, with flex ties formed as handcuffs, gloves, and
a ski mask found in his car. (2T. at 257; 263).
{¶83} Tammy Wright and Dennis Waddell, who both place Smith at the second
incident, are all caught together moments after the second incident, within a mile of the
McCourt's home with black ski masks, a Glock with an extended magazine, zip ties
formed as handcuffs, in a vehicle fitting the description McCourt gave to officers. (3T. at
362; 390; 412-420; 433-437; 456-458). Waddell testified that Smith showed him a black
revolver on the way to the McCourt’s home on March 27, 2015. (4T. at 515). Waddell
admitted that he had a Glock 9 with an extend magazine. (4T. at 514).
{¶84} Tammy Wright testified she picked up both Waddell and Smith and drove
them to McCourt’s neighborhood on March 27, 2015. (3T. at 409-415). Both Waddell and
Smith were dressed in black from head to toe. (3T. at 415). Smith and Waddell each called
Wright after the incident. (3T. at 418-419). Smith and Waddell were not at the same location
Delaware County, Case No. 15CAA 0077 29
when she picked them up. (3T. at 419-420). A .40 caliber Glock with a long magazine was
recovered from Wright’s Jeep Cherokee. (3T. at 442; 452).
{¶85} If the State relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “‘such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.’” State v. Jenks, 61 Ohio
St.3d 259, 272, 574 N.E.2d 492(1991) at paragraph one of the syllabus. “‘Circumstantial
evidence and direct evidence inherently possess the same probative value [.]’” Jenks, 61
Ohio St.3d at paragraph one of the syllabus. Furthermore, “‘[s]ince circumstantial
evidence and direct evidence are indistinguishable so far as the jury's fact-finding function
is concerned, all that is required of the jury is that i[t] weigh all of the evidence, direct and
circumstantial, against the standard of proof beyond a reasonable doubt.’” Jenks, 61
Ohio St. 3d at 272, 574 N.E.2d 492. While inferences cannot be based on inferences, a
number of conclusions can result from the same set of facts. State v. Lott, 51 Ohio St. 3d
160, 168, 555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co. , 164 Ohio
St. 329, 331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can
be employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio
St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶86} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Smith participated in both the January 3, 2015 and the March 27,
2015 incidents at McCourt’s home and that he had a firearm on his person during each
incident.
Delaware County, Case No. 15CAA 0077 30
{¶87} We hold, therefore, that the state met its burden of production regarding
each element of the crimes and, accordingly, there was sufficient evidence to support
Smiths convictions.
{¶88} As an appellate court, we are not fact finders; we neither weigh the evidence
nor judge the credibility of witnesses. Our role is to determine whether there is relevant,
competent and credible evidence, upon which the fact finder could base his or her
judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,
1982). Accordingly, judgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St. 2d 279, 376
N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[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. * * *.’” Eastley v. Volkman, 132 Ohio St. 3d 328, 334, 972 N.E.
2d 517, 2012-Ohio-2179, quoting 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 603, at 191–192 (1978). Furthermore, it is well established that the trial court is
in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th
Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St. 2d 230, 227
N.E.2d 212(1967).
{¶89} Ultimately, “the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
Delaware County, Case No. 15CAA 0077 31
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. 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).
{¶90} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212(1967),
paragraph one of the syllabus; State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86
L. Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843, 74 L. Ed. 2d
646 (1983).
{¶91} 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 jury 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 jury 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
Delaware County, Case No. 15CAA 0077 32
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).
{¶92} In the case at bar, the jury heard the witnesses, viewed the evidence and
heard Smith’s arguments concerning the lack of evidence and non-believability of the
state’s witnesses.
{¶93} 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. The jury
neither lost his way nor created a miscarriage of justice in convicting Smith of the charges.
{¶94} Based upon the foregoing and the entire record in this matter, we find
Smith’s convictions are 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 as a trier of fact can reach different conclusions concerning the credibility
of the testimony of the state’s witnesses and Smith’s witnesses and his arguments. This
court will not disturb the jury's finding so long as competent evidence was present to
support it. State v. Walker, 55 Ohio St. 2d 208, 378 N.E.2d 1049 (1978). The jury heard
the witnesses, evaluated the evidence, and was convinced of Smith’s guilt.
Delaware County, Case No. 15CAA 0077 33
{¶95} 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
crimes for which Smith was convicted.
{¶96} Smith’s seventh and eight assignments of error are overruled.
IX.
{¶97} In his ninth assignment of error, Smith challenges the imposition of the
consecutive terms on the ground that the trial court failed to make the findings required
by R.C. 2929.14(C)(4).
{¶98} The two-step approach set forth in State v. Kalish, 120 Ohio St. 3d 23, 2008-
Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.
We now review felony sentences using the standard of review set forth in R.C. 2953.08.
State v. Marcum, __Ohio St.3d__, 2016–Ohio–1002, __N.E.3d ___, ¶22; State v. Howell,
5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. 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.
{¶99} 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
Delaware County, Case No. 15CAA 0077 34
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.
{¶100} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this
presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4).
State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute
requires the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist.
Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶101} 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 **665 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
Delaware County, Case No. 15CAA 0077 35
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.
{¶102} 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.
{¶103} Recently, in State v. Bonnell, 140 Ohio St. 3d 209, 2014–Ohio–3177, 16
N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
Delaware County, Case No. 15CAA 0077 36
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,
but it has no obligation to state reasons to support its findings.
{¶104} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶29. “[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. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.
2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing
entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the
statutory findings in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to reflect what
actually occurred in open court. Bonnell, ¶30.
{¶105} 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.
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
Delaware County, Case No. 15CAA 0077 37
sentences are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public.
{¶106} At sentencing the trial court found,
I do find that consecutive sentences are necessary to protect the
public from future crime and to punish the Defendant, and consecutive
sentences are not disproportionate to the seriousness of his conduct and to
the danger that he poses to the public, and I also find that, of course, two of
these multiple offenses were committed as part of one course of conduct,
and the harm caused by the two offenses was so great and so unusual that
no single prison term for any one offense committed would adequately
reflect the seriousness of his conduct, and also the Defendant's history of
criminal conduct demonstrates that consecutive sentences are necessary
to protect the public from future crime.
Sent. T. at 19-20. The findings are reflecting in the court’s sentencing entry. Judgment
Entry on Sentence, filed September 16, 2015 at 5-6.
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.
{¶107} This provision does not apply to Smith’s case.
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
Delaware County, Case No. 15CAA 0077 38
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.
{¶108} In the case at bar, the trial court found,
I also find that, of course, two of these multiple offenses were
committed as part of one course of conduct, and the harm caused by the
two offenses was so great and so unusual that no single prison term for any
one offense committed would adequately reflect the seriousness of his
conduct, and also the Defendant's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future
crime.
Sent. T. at 19-20. The findings are reflecting in the court’s sentencing entry. Judgment
Entry on Sentence, filed September 16, 2015 at 5-6.
R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶109} As noted above, the trial court made this finding on the record and in the
sentencing entry.
{¶110} The trial court further found,
1. The Defendant has a history of criminal convictions.
2. He has failed to respond favorably in the past to sanctions for
criminal convictions.
3. The victim suffered serious physical, psychological, and economic
harm as a result of the Defendant’s actions.
Delaware County, Case No. 15CAA 0077 39
4. The offenses were committed as part of organized criminal activity.
5. The offenses do not merge, and the Defendant can and should be
sentenced separately on each of the charges for which he was found guilty
by the jury.
Judgment Entry on Sentence, filed September 16, 2015 at 2; Sent. T. at 15-17. The trial
court heard three days of testimony and considered a pre-sentence investigation report.
{¶111} We find that the record in the case at bar clearly and convincingly supports
the trial court’s findings under 2929.14(C)(4).
{¶112} Smith’s ninth assignment of error is overruled.
{¶113} The judgment of the Delaware County Court of Common Pleas, Delaware
County, Ohio is affirmed.
By Gwin, J.,
Farmer, P.J., and
Delaney, J., concur