State v. Anders ( 2017 )

[Cite as State v. Anders, 2017-Ohio-2589.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-16-27
v.
JOSHUA H. ANDERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2015 CR 0277
Judgment Affirmed
Date of Decision: May 1, 2017
APPEARANCES:
Joshua M. Kin for Appellant
Alex K. Treece for Appellee
Case No. 5-16-27
SHAW, J.
{¶1} Defendant-appellant, Joshua H. Anders, appeals the October 5, 2016
judgment entry of the Hancock County Court of Common Pleas journalizing his
conviction by a jury for one count of receiving stolen property in violation of R.C.
2913.51(A), a felony of the fourth degree, and sentencing him to serve a sixteen-
month prison term. On appeal, Anders assigns as error (1) the trial court overruling
his motion to suppress evidence obtained from a warrantless search, (2) the trial
court’s denial of his request to represent himself, (3) his claim that his conviction is
based upon insufficient evidence and is against the manifest weight of the evidence,
and (4) his assertion that he received ineffective assistance of counsel.
Procedural History
{¶2} On October 20, 2015, the Hancock County Grand Jury indicted Anders
on one count of receiving stolen property in violation of R.C. 2913.51(A), a felony
of the fourth degree. Specifically, the indictment alleged that Anders “did retain
certain property, a 2006 Bombardier Outlander, having vehicle identification
number 2BVEGCF136V000205, a motor vehicle, as defined in Ohio Revised Code
4501.01, being the property of another, one Alan B. Ferrell, the said Joshua H.
Anders having reasonable cause to believe said property had been obtained through
the commission of a theft offense as defined in Ohio Revised Code, Section
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2913.01.” (Doc. No. 1). Anders entered a plea of not guilty to the charge contained
in the indictment.
{¶3} On April 6, 2016, Anders filed a motion to suppress the photographic
identification of him by the victim and any evidence seized during the warrantless
search of his residence and surrounding property. The State filed a response
opposing Anders’ motion to suppress on April 12, 2016.
{¶4} On May 23, 2016, the trial court conducted an evidentiary hearing on
Anders’ motion to suppress. Prior to the hearing, the parties reached an agreement
with respect to the first issue raised by Anders. Specifically, the defense agreed to
withdrawal its argument objecting to the use of the photograph of Anders by law
enforcement in the identification process and the State agreed to stipulate to the trial
court giving the instruction at trial that improper procedures were used in identifying
Anders with the photograph. The matter then proceeded solely on the issue raised
regarding the warrantless search of Anders’ residence.
{¶5} On August 2, 2016, the trial court overruled Anders’ motion to suppress
finding that law enforcement’s warrantless search of the property where Anders’
had previously resided did not violate his Fourth Amendment rights because the
landlord had told the investigating detective that she had considered the property
abandoned and thus the trial court concluded that it was reasonable for the
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investigating detective to believe that the landlord had the apparent authority to
consent to the warrantless search of the home.
{¶6} On August 8, 2016, the trial court conducted a three-day jury trial on
the matter. The jury found Anders guilty of receiving stolen property. The trial
court continued sentencing pending the completion of a pre-sentence investigation
report.
{¶7} On October 5, 2016, the trial court sentenced Anders to sixteen months
in prison.
{¶8} Anders filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY OVERRULING ANDERS’
MOTION TO SUPPRESS EVIDENCE
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN DENYING ANDERS’
REQUEST FOR SELF-REPRESENTATION
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN DENYING ANDERS’ CRIM.
R. 29 MOTION AND WHETHER ANDERS’ CONVICTION
WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND SUPPORTED WITH SUFFICIENT
EVIDENCE
ASSIGNMENT OF ERROR NO. 4
WHETHER ANDERS’ RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL
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First Assignment of Error
{¶9} In his first assignment of error, Anders argues that the trial court erred
in overruling his motion to suppress evidence obtained against him on the grounds
that Detective Boutwell, the lead detective on the case, conducted an illegal
warrantless search of Anders’ rental home and violated Anders’ Fourth Amendment
right to be free from unreasonable searches and seizures. To the contrary, the State
contends that the circumstances existing at the time of the search supported a
reasonable belief by Detective Boutwell that the rental property had been abandoned
and that the landlord’s consent to search the home was sufficient to comply with
Fourth Amendment safeguards.
Standard of Review
{¶10} Under Ohio law, “[a]ppellate review of a motion to suppress presents
a mixed question of law and fact. When considering a motion to suppress, the trial
court assumes the role of trier of fact and is therefore in the best position to resolve
factual questions and evaluate the credibility of witnesses.” State v. Burnside, 100
Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8, citing State v. Mills, 62 Ohio St. 3d 357, 366
(1992). Accordingly, “an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence.” Id., citing State v.
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Fanning, 1 Ohio St. 3d 19, 20 (1982). Further, “[a]ccepting these facts as true, the
appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
Id., citing State v. McNamara, 124 Ohio App. 3d 706, 707 (4th Dist.1997).
Evidence Presented at the Suppression Hearing
{¶11} At the hearing on Anders’ motion to suppress, the State presented the
testimony of Detective Boutwell with the Hancock County Sheriff’s Office, who
was the only witness to testify at the hearing. His testimony revealed that Deputy
Crouch also with the Hancock County Sheriff’s Office had obtained a narrative from
the victim, Alan Ferrell, reporting that his ATV had been stolen from the gun club
he owned on Delaware Township Road 186 sometime between August 3 and
August 5, 2015. Mr. Ferrell gave a general description of the ATV as a 2006
Outlander Bombardier, four-wheel vehicle, factory yellow in color.
{¶12} On August 25, 2015, Mr. Ferrell followed up with Deputy Crouch and
reported that he had seen an ATV for sale on Craigslist. The listing stated that the
ATV for sale was a Bombardier Outlander and black in color. Mr. Ferrell relayed
that he had contacted the listed seller and made arrangements to meet at 408/410
Washington Street in Findlay, which was a duplex. Mr. Ferrell met with an
individual, whom he described as a Caucasian male in his twenties with several
tattoos on his face, arms, and wrists. This individual showed Mr. Ferrell the ATV
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for sale in the garage. Mr. Ferrell identified the same aftermarket modifications on
the ATV offered for sale as the ones he had made to his stolen ATV. Mr. Ferrell
also observed the factory yellow color in the seams and recognized the decals under
the black paint job.
{¶13} The case was handed over to Detective Boutwell the next morning on
August 26, 2015. Detective Boutwell contacted Mr. Ferrell to verify his narrative
regarding the Craigslist ATV and then obtained the Craigslist listing, which was
posted on August 17, 2015. Detective Boutwell went to the 408/410 Washington
Street address in Findlay to confirm that it was the same location where Mr. Ferrell
had seen the ATV for sale. Detective Boutwell also learned from police booking
information that Anders had been associated with the 408/410 Washington Street
address. Detective Boutwell obtained a search warrant for the duplex at 408/410
Washington Street.
{¶14} After executing the search warrant, Detective Boutwell entered the
garage, which he described to be so packed with items that he could hardly move.
He did not find an ATV, but noticed an open space the approximate size of an ATV
amid the clutter, and observed what looked to be skid marks consistent with an ATV
on the concrete floor. Detective Boutwell also encountered Anders’ sister and her
boyfriend at the residence who confirmed that Anders and his girlfriend, Andrea
Spitnale, had stayed at the residence on August 25, 2015, the date Ferrell examined
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the ATV for sale in the garage.1
{¶15} On August 28, 2015, Ms. Spitnale made contact with Detective
Boutwell and indicated that she lived with Anders in a residence at 505 S. Davis
Street in Forest, Ohio.
{¶16} On August 31, 2015, a Monday, Detective Boutwell went to the S.
Davis Street address to speak with Ms. Spitnale and Anders. However, the property
appeared to be abandoned or vacant when he arrived. Specifically, he observed a
broken window, open windows with no screens, several items and debris in the front
yard, including a broken television, and no cars in the driveway.
{¶17} Detective Boutwell talked to several neighbors, who observed an ATV
on the property during the beginning of August in the backyard and in the garage of
the 505 S. Davis Street property. Two neighbors recognized a photo of Anders and
confirmed that he and Ms. Spitnale had lived at the 505 S. Davis Street residence.
One neighbor stated that he had helped Anders work on an ATV and identified it as
the same one that was in the Craigslist photos. Another neighbor recognized the
ATV from the Craigslist photos as the same one parked on the property. The
neighbor also reported that the couple was in the process of moving out a few days
prior and she had observed them loading a U-Haul trailer full of personal items.
1
The record reflects that Anders’ paramour, Andrea, was associated with three last names during the case
proceedings, Bender, Spitnale, and then eventually Anders when she married the defendant prior to the trial.
For clarity reasons, we will refer to Andrea with the last name Spitnale.
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{¶18} Detective Boutwell then contacted the owner of the property, Patti
Walters. He met with her that evening at the 505 S. Davis Street residence. Ms.
Walters confirmed that at one point in time she had a land-contract with Ms. Spitnale
and her former husband, who was not Anders. She relayed to Detective Boutwell
that the rent had not been paid in some time and showed him an eviction notice that
she had posted on the door of the rental home dated July 26, 2015. According to
Ms. Walters, Ms. Spitnale called her acknowledging the eviction notice and asked
for two more weeks before leaving. Ms. Walters gave her one week after the date
of the eviction notice to vacate the property. Ms. Walters also indicated that the
village had turned off the water to the home due to nonpayment.
{¶19} Detective Boutwell looked through the window and saw garbage bags,
pieces of furniture, and clothes scattered on the floor inside. Ms. Walters opined
that she considered the property abandoned due to the fact that there was no ongoing
lease and an eviction notice had been served. Ms. Walters, as the owner of the
property, then signed a waiver to consent to the search by Detective Boutwell.
{¶20} Upon entering the home, Detective Boutwell noticed that it appeared
as if someone had moved out in a hurry. There were broken pieces of furniture,
bags of clothing, and debris scattered throughout the home. There were also many
bottles of water in the bathroom indicating that the previous occupants had been
using them to flush the toilet. There was chicken in a skillet on the stove that looked
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as if it had been there for three or four days. Detective Boutwell also found
documents with Anders’ and Ms. Spitnale’s names in the mailbox, the home, and
the garage.
{¶21} When he entered the garage, Detective Boutwell observed a
workbench sprayed with black paint. Next to the workbench was a black cap which
appeared to be that from an aerosol spray paint can. He then noticed black spray
paint on the garage floor in a silhouette consistent with the shape of a four-wheel
ATV. While there was no garage door, he found a blue tarp lying to the side on the
ground that neighbors had observed hanging on the doorframe so that no one could
see in. At that point, Detective Boutwell believed that he had obtained probable
cause to believe that Anders had been involved in a theft or receiving stolen property
offense related to Mr. Ferrell’s ATV.
{¶22} In its judgment entry overruling Anders’ motion to suppress, the trial
court found that “it was reasonable for Detective Boutwell to believe that Ms.
Walters had the apparent authority to consent to the search of 505 S. Davis Street
Forest, Ohio. Because it was reasonable to believe Ms. Walters had the apparent
authority to consent to the search based on the defendant’s abandonment of the
rental property, the search did not violate Defendant Anders’ Fourth Amendment
rights.” (Doc. No. 95 at 10).
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{¶23} On appeal, Anders claims that the trial court erred in concluding that
it was reasonable for Detective Boutwell to believe that Ms. Walters had the
apparent authority to consent to the search. Specifically, Anders claims that the
evidence at the suppression hearing failed to establish that Anders and Ms. Spitnale
had abandoned the rental home due to the fact that a forcible entry and detainer
proceeding had not been initiated by Ms. Walters and that some of the couples’
personal effects such as bags of clothing still remained in the home. Thus, Anders
argues that he still maintained an expectation of privacy in the 505 S. Davis Street
residence.
{¶24} In general, “[t]he Fourth Amendment protects individuals from
unreasonable search and seizure by the government.” State v. Corbin, 194 Ohio
App.3d 720, 2011-Ohio-3491, ¶ 24 (6th Dist.). In order to have standing to
challenge a violation, however, “an individual must have a legitimate expectation
of privacy in the subject matter of the search.” Id., citing Minnesota v. Olson, 495
U.S. 91, 95-96 (1990). It has been held that “[a] legitimate expectation of privacy
is ‘one that society is prepared to recognize as reasonable,’ ” and “[t]he burden is
on the party asserting the motion to provide sufficient evidence to prove grounds
for standing.” Corbin at ¶ 24, quoting Rakas v. Illinois, 439 U.S. 128, 143-44 (1978).
{¶25} “[O]ne of the specifically established exceptions to the requirements
of both a warrant and probable cause is a search that is conducted pursuant to
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consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Such consent may
be obtained from “a third party who possessed common authority over or other
sufficient relationship to the premises or effects sought to be inspected.” U.S. v.
Matlock, 415 U.S. 164, 171 (1974).
{¶26} It is not necessary that the consenting third party have actual authority
over the premises. State v. Portman, 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-
4343, ¶ 13, citing United States v. Ayoub, 498 F.3d 532, 537 (6th Cir.2007). Even
where the consenting third party lacked actual authority to consent to a search, the
consent is still valid if the police reasonably believed that the person had authority
to consent to the search. Illinois v. Rodriguez, 497 U.S. 177, 188-189 (1990).
Whether sufficient apparent authority exists must “ ‘be judged against an objective
standard: would the facts available to the officer at the moment * * * “warrant a
man of reasonable caution in the belief” ’ that the consenting party had authority
over the premises?” Id. at 188, quoting Terry v. Ohio, 392 U.S. 1, 21–22 (1968);
State v. Corbin, 194 Ohio App. 3d 720, 2011-Ohio-3491, ¶ 28 (6th Dist.).
{¶27} Based on the evidence presented at the suppression hearing, we
conclude that the facts available to Detective Boutwell were sufficient to warrant a
reasonable belief that Ms. Walters had apparent authority to consent to a search of
the premises. Detective Boutwell had had previous conversations with neighbors
who observed Anders and Ms. Spitnale hurriedly moving their personal belongings
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out of the home and into a trailer. He also learned from Ms. Walters, the property
owner and landlord of the premises, that an eviction notice had been posted on the
door of the home a month earlier and that Ms. Spitnale had acknowledged receipt
of the notice and was given a week by Ms. Walters to vacate the home.
{¶28} Detective Boutwell also observed broken and open windows and a
large amount of trash and debris in the front yard, which indicated that the occupants
were no longer living there. When Detective Boutwell spoke to Ms. Walters on
August 31, 2015, she informed him that she considered the property abandoned.
Based on these circumstances, Detective Boutwell could have reasonably believed
that the home had been abandoned and that Ms. Walters had the authority to consent
to his entry into the home. 2
{¶29} Accordingly, we find that the trial court did not err in overruling
Anders’ motion to suppress the evidence found at the 505 S. Davis Street residence.
The first assignment of error is overruled.
{¶30} For ease of discussion, we elect to address the second and third
assignments of error out of order.
Third Assignment of Error
2
Notably, Anders has failed to direct us to any authority supporting his contention on appeal that the lack of
an FED action filed by the landlord somehow obviated the legitimacy of her authority to consent to a search
of the premises as the property owner or undermined the trial court’s credibility determination of Detective
Boutwell’s testimony at the suppression hearing. Moreover, we do not find this assertion dispositive given
the circumstances outlined at the suppression hearing supporting Detective Boutwell’s reasonable belief that
the home was abandoned and that Ms. Walters had the apparent authority to consent to the search of the
residence.
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{¶31} In his third assignment of error, Anders claims that the trial court erred
in overruling his Crim.R. 29 motion for acquittal. Specifically, Anders asserts that
his conviction for receiving stolen property is not supported by sufficient evidence
and is against the manifest weight of the evidence.
Standard of Review
{¶32} An appellate court reviews a denial of a Crim.R. 29 motion for
acquittal using the same standard used to review a sufficiency of the evidence claim.
See State v. Carter, 72 Ohio St. 3d 545, 553, 1995-Ohio-104. “In essence,
sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain
a verdict is a question of law.” State v. Thompkins, 78 Ohio St. 3d 380, 386. Thus,
“[t]he 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.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
{¶33} In determining whether a conviction is against the manifest weight of
the evidence, the court of appeals functions as the “thirteenth juror,” and after
“reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines 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 overturned and a new trial ordered.” State v.
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Thompkins, 78 Ohio St. 3d 380, 387 (1997). Reversing a conviction as being against
the manifest weight of the evidence and ordering a new trial should be reserved for
only the “exceptional case in which the evidence weighs heavily against the
conviction.” Id.
{¶34} In the instant case, Anders was convicted of receiving stolen property,
in violation of R.C. § 2913.51(A), which reads: “(A) No person shall receive, retain,
or dispose of property of another knowing or having reasonable cause to believe
that the property has been obtained through commission of a theft offense.”
Evidence Supporting Anders’ Conviction
{¶35} The following evidence was adduced at trial. The prosecution
presented the testimony of Alan Ferrell, the victim in this case and the owner of the
stolen ATV. Mr. Ferrell is employed as a service manager at Ryder Truck Rental
and was a mechanic there for 18 years. He owns the Broken Bird gun club in
Delaware township in Hancock County, near Forest. In 2012, Mr. Ferrell purchased
a yellow 2006 Bombardier Outlander four-wheel drive ATV with a 400cc engine
for mowing, spraying, and to clean up brush on the gun club property.3 He stored
the ATV in the garage attached to the gun club’s main building, which had been a
residence prior to 1971.
3
The title to the ATV establishing Mr. Ferrell’s ownership was admitted as an exhibit at trial.
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{¶36} On August 5, 2015, Mr. Ferrell received a phone call from one of the
gun club members informing him that someone had broken into the garage and that
items may be missing. Mr. Ferrell recalled that he was last on the property the
previous Sunday, August 3, 2015. He left work and arrived to the gun club to find
that his ATV had been stolen. Mr. Ferrell described the ATV in detail. He
explained that being equipped with the skills of a mechanic he had made several
unique aftermarket modifications to the ATV, which were not factory standard or
typically found on an ATV of this type and that made his ATV easily identifiable.
{¶37} In particular, Mr. Ferrell had installed a receiver hitch so that he could
pull his mower. He also installed a winch on the front of the four wheeler. He
explained that he bought a bracket and mount for the winch and attached a relay to
control the winch on the rear with a bracket that he fashioned himself from several
different parts. He then used some wiring from a truck on the relay that he had on
hand. He stated that this is significant because a typical professional installing the
relay would not have used such heavy wiring. He also installed the control for the
winch on the left handlebar. Mr. Ferrell noted that the winch was set up to have a
rope on it. He bought an orange poly rope about 5/16th of an inch in diameter from
Cabela’s and put it on the winch. In addition to the modifications, Mr. Ferrell had
also twice repaired the shifter handle by welding a rod to the side of the handle and
painting it black.
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{¶38} Mr. Ferrell reported the ATV missing to Deputy Crouch shortly after
discovering the theft. He began routinely viewing listings on Ebay and Craigslist.
About two weeks later, Mr. Ferrell saw a black ATV similar to his for sale on a
Craigslist listing posted on August 17, 2015. From the photos in the listing, he
noticed the orange rope on the front of the winch and a recoil starter, which indicated
to him that it was a 400cc engine, and not a 800cc engine as stated in the listing.4
{¶39} Mr. Ferrell arranged to meet with the seller, who seemed anxious to
sell the vehicle, and gave him an address of 411 Washington Street in Findlay. He
initially could not find the address so he called the seller who informed him that the
address was actually 408 Washington Street. Mr. Ferrell observed the seller, whom
he identified as Anders in the courtroom, walking out from between two houses in
a hooded sweatshirt and on the cell phone. Anders told Mr. Ferrell to drive down
the alley on the back side of the property. There, Anders directed Mr. Ferrell to a
small building where the four wheeler was sitting outside.
{¶40} Mr. Ferrell stated that the ATV was the same as the one depicted on
Craigslist. Mr. Ferrell recalled Anders’ explaining that he did not have a title to the
ATV. Anders stated that the ATV belonged to his father-in-law who gave it to him
to use. Anders claimed to be selling the ATV because he no longer had anywhere
4
The photos from the Craigslist posting were admitted as exhibits. The photos depict black paint overspray
on one of the headlights, an orange rope on the winch, and yellow paint in the seams and on the side where
the black paint had been scratched off.
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to ride it. Mr. Ferrell immediately noticed that the ATV looked like someone had
painted it black. He could see some overspray of black paint on the headlights and
yellow paint in between the seams. He noted that the body paint was a glossy black
which grabbed his attention because it was a different color than the original racks
on the ATV, which were a flat black.
{¶41} Even though the Craigslist listing stated the ATV was an 800cc
engine, Mr. Ferrell knew by looking at it that the ATV had a 400cc engine because
it had one cylinder. He was unable to find the VIN number on the ATV because the
sticker was either removed or painted over. He also observed that the rubber on the
tires had been shredded as if it had been dragged down the road. He was able to
determine that it was his ATV by the welded shifter handle, the winch that had the
orange rope, and the heavy truck wire he had used on the relay. Mr. Ferrell recalled
Anders starting the ATV with a key, but that it was not drivable because the clutch
had been damaged. He testified that he was “one hundred percent” confident the
vehicle offered for sale by Anders was his stolen ATV and drove to the Hancock
County Sheriff’s Office, which was a short distance from the Washington Street
address, to make a report. (Doc. No. 143 at 221).
{¶42} The State also called Deputy Crouch and Detective Boutwell as
witnesses who both offered testimony consistent with the evidence established
during the hearing on Anders’ motion to suppress. Detective Crouch described
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evidence of the forced entry into the gun club’s garage when he first arrived to
obtain a report regarding Mr. Ferrell’s stolen ATV. He observed that the windows
on the garage were broken and he could tell that entry was gained from the outside
by the amount of glass on the interior garage floor.
{¶43} Detective Boutwell provided more detail at trial regarding his
observations upon entering the residence at 505 S. Davis Street after obtaining
consent to search the home from the property owner. In addition to finding the black
cap consistent with that from an aerosol spray paint can in the garage, seeing black
paint on the workbench and on the garage floor in the outline of an object the size
of an ATV, Detective Boutwell also discovered that someone had written in black
paint all over the walls inside the home. Detective Boutwell took photographs of
the black paint and related items in the garage, which were admitted as exhibits.
{¶44} Detective Boutwell also spoke to three neighbors residing in close
proximity to the 505 S. Davis Street property. He spoke to Ann Gessner who
recognized Anders and Ms. Spitnale from photographs. Ms. Gessner recalled seeing
a dark colored ATV on the property in the backyard during the beginning of August.
Ms. Gessner also observed Anders and Ms. Spitnale, a few days prior to her
speaking to Detective Boutwell, moving their personal belongings in a very hurried
fashion, dropping items and throwing them in a U-Haul trailer. Another neighbor
Dorothy Vigneron observed a dark colored ATV parked on the 505 S. Davis Street
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property and noticed an individual working on it. Roger Larrabee, the third
neighbor, also remembered a dark colored ATV being on the property. He recalled
assisting Anders in taking the clutch spring out. Mr. Larrabee witnessed Anders
driving the ATV on the street and it becoming disabled. Ms. Spitnale had borrowed
tools from him to try to fix the ATV. Mr. Larrabee also recognized the ATV in the
Craigslist photos.
{¶45} In addition to talking to the neighbors who had seen Anders with an
ATV at the 505 S. Davis Street property and who had also observed Anders and Ms.
Spitnale moving out of the home, Detective Boutwell also spoke to an employee at
a U-Haul rental office, who indicated that Anders had rented trailers from him.
Daniel Grimm, the U-Haul rental dispatcher, was called to the stand to testify in the
State’s case-in-chief. Mr. Grimm discussed the rental agreements Anders had
signed and the documents were admitted as exhibits. He explained that individuals
renting U-Haul equipment are required to show a photo ID at the time of rental. He
stated that Anders rented from him twice in August 2015. In the first instance,
Anders rented a 5’8” covered trailer on August 12, 2015, which was returned the
next day. In the second instance, Anders rented a 5’9” ramp trailer from him on
August 26, 2015, which Anders also returned the next day.
{¶46} The State also presented the testimony of Patti Walters, the property
owner of the 505 S. Davis Street home. Ms. Walters stated that she purchased the
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home in 2009 and lived there until she entered into a land contract for the sale of the
home with Andrea Spitnale in September of 2014. However, she explained that Ms.
Spitnale did not complete the land contract because she stopped making payments.
Specifically, she recalled that the payments started to become irregular after the first
three months of the land contract and she had had several phone conversations with
Ms. Spitnale about the nonpayment of rent. Finally, she posted a three-day eviction
notice on the door of the home in July of 2015. Ms. Walters described the condition
of the home after Anders and Ms. Spitnale had vacated. She recalled a significant
amount of damage, which consisted of a broken front bay window and a bullet hole
or bb gun hole in the bathroom window. She also found black paint smeared all
over the kitchen cupboards, the marble countertops, the hardwood floors, and there
were holes all over the dry wall and obscenities written on the walls.
{¶47} The defense presented the testimony of two neighbors who could not
recall a specific date they saw the ATV at the 505 S. Davis Property, but instead
gave a range of sometime in July or the beginning of August 2015. Ms. Spitnale
also testified on Anders’ behalf. Ms. Spitnale stated that she purchased an 800cc
engine ATV around July 29, 2015 from Craigslist for $800 cash from an individual
she generally described as “probably in his 20’s, country boy, skinny, tall, drove [a
red] truck.” (Doc. No. 144 at 356-57). She recalled that the ATV was green and
yellow. She and Anders decided to sell it and recoup their money after the clutch
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spring broke, but they thought they could get more money for it if they spray painted
it black to cover the chipped paint.
{¶48} She confirmed that she and Anders took the ATV to Anders’ sister’s
home in Findlay because it had a secure garage. She was able specifically to recall
Anders meeting with a man named “Alan Ferrell” about the ATV at the Washington
Street duplex. (Doc. No. 144 at 362). She remembered Anders telling Mr. Ferrell
the story that the ATV had belonged to her father. She explained that they lied about
the ownership history of the ATV because they did not want a potential buyer to
think they were just selling it to get their money back. Ms. Spitnale claimed that
someone from Michigan “probably in his early 20’s wearing a cutoff T-shirt, just a
country boy with a big green truck and trailer” purchased the ATV for $1,700 a day
or two after Mr. Ferrell looked at it. (Doc. No. 144 at 364).
{¶49} On appeal, Anders claims his conviction is based upon insufficient,
“sparse evidence” and essentially quarrels with the circumstantial nature of the
evidence supporting his conviction. It is well-settled under Ohio law that a
defendant may be convicted solely on the basis of circumstantial evidence. State v.
Nicely, 39 Ohio St. 3d 147, 151 (1988). “Circumstantial evidence is not less
probative than direct evidence, and, in some instances, is even more reliable.” Id.
{¶50} Anders was charged with one count of receiving stolen property in
violation of R.C. 2913.51(A), (C). To prove this charge, the State had to present
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evidence that Anders (1) received, retained, or disposed of the property of another
(2) while knowing or having reasonable cause to believe (3) that the property had
been stolen.
{¶51} Mr. Ferrell testified that his ATV was stolen from his property located
five miles from where Anders was residing at 505 S. Davis Street. Deputy Crouch’s
testimony corroborated Mr. Ferrell’s claim that the ATV was obtained by a forcible
entry into the garage. Not long after, Mr. Ferrell saw a Craigslist posting selling an
“black” ATV. From the photos in the posting, Mr. Ferrell identified specific
aftermarket modifications that he had made to the ATV, as well as what appeared
to be yellow paint in the seams not covered by the black paint and evidence that the
clutch had been damaged. Mr. Ferrell met with Anders regarding the Craigslist
posting and examined the ATV at the Washington Street residence in Findlay where
Anders’ sister lived. Mr. Ferrell was able to better view the specific modifications
that he had made to the ATV and confirm that the vehicle was his ATV.
{¶52} After Detective Boutwell made contact with Anders’ sister and
obtained a search warrant for the Washington Street home, Anders’ girlfriend Ms.
Spitnale contacted Detective Boutwell and gave him the 505 S. Davis Street address
as the place where she and Anders resided. Detective Boutwell later arrived to the
address to find that Anders and Ms. Spitnale had moved from the home in a hurry.
There was evidence that a large object had been sprayed painted black in the garage.
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There were also eyewitness accounts obtained by Detective Boutwell placing the
ATV at the 505 S. Davis Street property in early August. In addition, the rental
agreements from the U-Haul dealership confirmed that Anders had rented a trailer
on August 12, 2015 sometime after the ATV was reported stolen and before it
appeared on Craigslist and at his sister’s home for sale, and rented another trailer
the day after Mr. Ferrell observed the ATV at the Washington Street home. Viewing
the evidence in a light most favorable to the State, the evidence is sufficient to
support the charge of receiving stolen property.
{¶53} Turning to Anders’ argument that his conviction is against the
manifest weight of the evidence, we note that it is apparent from the evidence
presented by the defense at trial that Anders did not deny that he was in possession
of an ATV during the relevant timeframe of this case that he and Ms. Spitnale had
painted black and sold on Craigslist. Rather, Anders’ primary contention at trial
was that the ATV was a different vehicle and was not Mr. Ferrell’s stolen ATV.
Anders presented the testimony of two of the same neighbors interviewed by
Detective Boutwell who lived near the 505 S. Davis Street property. These
neighbors were unsure of the exact dates they saw the ATV at the 505 Davis Street
property but instead gave an estimated time frame of late July 2015 to sometime in
August. While Anders contends that this testimony supports Ms. Spitnale’s account
of purchasing an ATV in late July 2015, this evidence also supports the State’s
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assertion that the ATV seen at Anders’ residence at the time was the same one stolen
from the nearby gun club in early August 2015.
{¶54} Moreover, on cross-examination the prosecutor sought to discredit
Ms. Spitnale’s account describing how she and Anders obtained the ATV by
questioning her reasoning for spending $800 on an ATV when she admitted that she
was unemployed and could not afford to pay rent or the utilities for the home where
she and her young child lived with Anders. She was also unable to specifically
recall basic features of the ATV—i.e., the number of gears or the type of wheels—
on the ATV, and instead claimed that she did not “know all about ATVs.” (Doc.
No. 144 at 371). However, when asked how she adamantly knew the ATV she sold
was an 800cc engine, and not a 400cc engine like Mr. Ferrell’s, she asserted that “I
have had a lot [of ATVs] in the past, and I know what the sizes are at least.” (Id.).
{¶55} In evaluating a manifest-weight claim, “the weight to be given the
evidence and the credibility of the witnesses are primarily for the trier of the facts.”
State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus. When
examining witness credibility, “the choice between credible witnesses and their
conflicting testimony rests solely with the finder of fact and an appellate court may
not substitute its own judgment for that of the finder of fact.” State v. Awan, 22
Ohio St. 3d 120, 123 (1986). In finding Anders guilty of receiving stolen property,
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it is clear the jury concluded that Ms. Spitnale’s testimony regarding the acquisition
of the ATV was not credible.
{¶56} Anders also directs our attention to the fact that Mr. Ferrell revealed
on cross-examination that the key to his ATV was not stolen and remained in a
lockbox in the gun club’s garage and to the fact that Mr. Ferrell testified that when
he responded to Anders’ Craigslist posting Anders started the ATV with a key.
Anders disputes the jury’s determination to not give these facts a great amount of
weight. However, we note that Mr. Ferrell also testified that when he viewed the
ATV at the Washington Street duplex, it was apparent that someone had tampered
with the vehicle and that the rubber on the tires showed wear consistent with the
ATV being dragged on the street. Moreover, Mr. Ferrell noted that while Anders
started the ATV with a key, the ATV was not operable due to the damage to the
clutch. In addition, one of the neighbors who spoke to Detective Boutwell verified
that he assisted Anders in taking out the clutch spring. All of these facts give rise
to a reasonable inference that the ATV was dragged out of the gun club’s garage
and the ignition was later replaced, which the jury could have permissibly concluded
from the evidence presented at trial.
{¶57} This Court will not overturn a conviction as being against the manifest
weight of the evidence simply because the trier of fact chose to believe the State’s
version of events over another version. We afford the trier of fact great deference
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because it is in the best position to observe the witnesses’ demeanor and assess their
credibility. As such, we cannot say the jury lost its way in finding Anders guilty of
receiving stolen property and, therefore, we do not find that Anders’ conviction is
against the manifest weight of the evidence. Accordingly, the third assignment of
error is overruled.
The Second Assignment of Error
{¶58} In his second assignment of error, Anders argues that the trial court
erred by summarily denying his oral request made after the presentation of the
defense’s case to represent himself.
{¶59} We review for an abuse of discretion a trial court’s denial of a request
to proceed pro se asserted after voir dire was complete. State v. Owens, 9th Dist.
Summit No. 25389, 2011-Ohio-2503, ¶ 17, citing State v. Vrabel, 99 Ohio St. 3d
184, 2003-Ohio-3193, ¶ 51-53. An abuse of discretion suggests the trial court’s
decision is unreasonable, arbitrary, or unconscionable. State v. Kramer, 3d Dist.
Defiance No. 4-15-14, 2016-Ohio-2984, ¶ 8, citing State v. Adams, 62 Ohio St. 2d
151, 157 (1980).
{¶60} The record reflects that after the last defense’s witness, Ms. Spitnale,
stepped down from the stand, Anders’ counsel asked the trial court for a sidebar
without the court reporter. The trial court excused the jury from the courtroom and
the following was placed upon the record.
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Trial Court: Please be seated. Record should reflect the jury’s
exited the courtroom, the exit door is closed.
Record should reflect that counsel for the Defendant, in a sidebar,
asked the Court to recess until tomorrow, so that the Defendant
could make a decision whether or not he was going to testify. We
have been discussing this now for a day and a half, and I’ve
overruled that motion.
Mr. Zografides has asked for about 10 minutes to talk to his client,
so we’ll be back on the record here in about 10 minutes. Court
will stand in recess.
* * *
Trial Court: Please be seated. We’re back on the record in 2015-
CR-277, State of Ohio verses Anders. Jury is in the jury room.
Court, counsel, appropriate Court personnel, Defendant are in
the courtroom. Mr. Zografides, we ready to proceed?
Mr. Zografides: Your Honor, I would just indicate to the Court
that we do have a motion to proffer to the Court, and this is in
regards to my client’s request to represent himself at this point.
It is his intention to give his closing to the jury, and that is his
request. I—my advice is that he not do that. It’s my advice that—
that I continue to do the trial, and I continue to give the closing
arguments. Josh wants to represent himself at this point.
Now, I have instructed him that, discussed this in chambers, the
Court is going to overrule that. Further, Josh wants me to make
this motion for him to represent himself and give the closing in
front of the jury. I have advised him, doing this now outside the
presence of the jury, that I don’t think that’s a good idea to do
that, but it is his wish and his intention he would like me to make
that motion in front of the jury, so that’s what I am requesting on
behalf of Josh to do that in front of the jury, that he represent
himself, so that they know what his intentions are.
Trial Court: Is that a fair statement of the status of affairs, Mr.
Anders?
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Anders: Yes, Your Honor.
***
Trial Court: Mr. Anders, this is highly unusual. I’m not going to
permit it, because the bottom line is, I think you want to talk to
the jury without being under oath and being subject to cross-
examination.
Closing arguments are not evidence. I’ll be talking to the jury
about that. They’re not to be considered as evidence. And it’s
really not appropriate that these motions are made in front of the
jury, so I’m not going to permit that. Just like when we rule on
the evidence, we went over to the, have a bench conference in
chambers, when we talked about the Criminal Rule 29 motion
that Mr. Zografides made, we didn’t do that in front of the jury.
There is [sic] certain things in a trial that the jury, as factfinders,
should not hear. And one of those would be this kind of a motion.
So the bottom line is, Mr. Zografides is the attorney here, he’s
tried the case, he’s prepared for the trial.
Just so the record is clear, you were represented initially by the
Public Defender’s office. You and Mr. Sass had a parting of the
ways. I allowed Mr. Sass to withdraw.
Specifically at your request, we appointed Drew Wortman of
Findlay, Ohio as your next attorney. Mr. Wortman was
apparently ready to try the case and that went south, so I let Mr.
Wortman off and appointed Mr. Zografides.
* **
Mr. Zografides came on board, because I had initially appointed
Aaron Misthal of Bowling Green. He was the next person up on
the list. Mr. Misthal suggested he had too much going on, but
wondered if Mr. Zografides could take the case, if I had a problem
with that, I said absolutely not, so we appointed Mr. Zografides.
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The Court granted Mr. Zografides the ability to file a motion to
suppress evidence, which was filed way after the rule, 35 days
after arraignment, or seven days before trial, which ever comes
first. We had the suppression hearing. The Court ruled on the
suppression hearing, and we’re not changing lawyers at this point,
Mr. Anders. So if you want to testify, that’s where we head next.
If you don’t want to testify, that’s where we head next. I’m
assuming Mr. Zografides is going to ask that certain defense
exhibits be admitted. I’m going to rule on that, outside the
hearing of the jury, then we’re going to proceed and see where we
go.
Yes, sir?
Anders: Your Honor, isn’t it the right of—for me to be able to
represent myself? Is that my right as a human being?
Trial Court: That generally is a constitutional right. I’m finding
in this particular scenario you’re not going to pull the plug when
the going gets tough. You started with Zografides, he’s your third
attorney, he’s going to finish the trial. * * *
Mr. Zografides: Your Honor, just so I make a crystal clear
record, on behalf of my client, he’s requesting to represent
himself, and he’s requesting to make that request in front of the
jury, which the Court has denied that request, to do that in front
of the jury as well?
Trial Court: That’s correct.
Mr. Zografides: Okay.
Trial Court: I’m denying that request. I’m denying his
opportunity, or his whatever you want to call it, to communicate
directly with the jury in the context that he wants to communicate
in.
(Doc. No. 144 at 374-80).
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{¶61} At the outset we note that the assertion of the right to self-
representation must be clear and unequivocal. State v. Dean, 127 Ohio St. 3d 140,
2010-Ohio-5070, ¶ 68; State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, ¶ 38.
Moreover, a request for self-representation may be denied when circumstances
indicate that the request is made for purposes of delay or manipulation of the trial
process. State v. Neyland, 139 Ohio St. 3d 353, 2014-Ohio-1914, ¶ 72, citing United
States v. Frazier-El, 204 F.3d 553, 560 (4th Cir.2000). A trial court may also deny
a defendant’s request for self-representation if it is untimely made. The Supreme
Court of Ohio held that a defendant’s request to represent for self-representation
made just before the beginning of the trial-phase closing arguments was untimely.
State v. Neyland, 139 Ohio St. 3d 353, 2014-Ohio-1914, ¶ 76; see also Kramer,
2016-Ohio-2984 at ¶ 14 (finding the defendant’s self-representation request during
the second day of trial to be untimely).
{¶62} Here, the record supports the trial court’s decision to deny Anders’
request to represent himself at trial. Anders had been represented by two different
attorneys prior to the appointment of counsel who ultimately defended the case
during the jury trial. Anders had sufficient time to properly invoke his right to self-
representation and to then prepare for trial, but he chose not to do so until after he
witnessed the ardent cross-examination of the last defense witness, Ms. Spitnale.
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Thus, Anders asserted his desire for self-representation after all the other witness
had testified leaving just closing remarks for him to proceed pro se.
{¶63} Therefore, in addition to the request being untimely, we cannot say
that the trial court abused its discretion in denying Anders’ request to proceed pro
se by finding that it was made in an effort to manipulate the trial court proceedings
so that he could be given the opportunity to speak to the jury without being subject
to cross-examination by the prosecutor. Accordingly, we do not find that the trial
court erred on this basis and the second assignment of error is overruled.
Fourth Assignment of Error
{¶64} In his fourth assignment of error, Anders claims that he received
ineffective assistance from his trial counsel on three grounds. First, Anders asserts
that his counsel was ineffective because he failed to meet with Anders prior to trial,
which in turn made Anders feel uncomfortable with taking the stand to testify in his
defense. Second, Anders argues that his trial counsel’s failure to meet with him
prior to trial resulted in a missed opportunity for trial counsel to investigate
potentially mitigating evidence to present to the jury. Third, Anders claims that his
trial counsel was ineffective for failing to timely object to remarks made by the
prosecutor in closing argument.
{¶65} To establish his claims on appeal, Anders must show that trial
counsel’s performance was deficient and that counsel’s deficient performance
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Case No. 5-16-27
prejudiced him. State v. Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, ¶ 133, citing
Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either
showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42
Ohio St. 3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no reason for a
court deciding an ineffective assistance claim to approach the inquiry in the same
order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.”).
{¶66} Initially we note that the record is devoid of any evidence supporting
Anders’ contention that his counsel’s conduct with him prior to trial caused him to
lack the confidence to testify in his defense or prevented certain mitigating evidence
from being discovered or presented at trial. A claim of ineffective assistance of trial
counsel may exist where the record shows that the defendant’s attorney failed to
conduct a reasonable investigation into a defendant’s case. State v. Kenard, 10th
Dist. Franklin No. 15AP-766, 2016-Ohio-2811, ¶ 23, citing State v. Hunter, 131
Ohio St. 3d 67, 2011-Ohio-6524, ¶ 104. However, where proof outside the record
is required to support a claim of ineffective assistance of trial counsel, the claim is
“purely speculative and * * * ‘it is not appropriate for consideration on direct
appeal.’ ” Id., quoting State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-
Ohio-3072, ¶ 4, citing State v. Madrigal, 87 Ohio St. 3d 378, 390-91 (2000).
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Therefore, we do not find that Anders has established that he received ineffective
assistance of counsel based upon the first and second grounds alleged.
{¶67} Anders also claims that his trial counsel was ineffective for failing to
timely object to certain remarks made by the prosecutor in closing arguments. The
following are the comments upon which Anders bases his claim of ineffective
assistance of counsel on appeal.
Prosecutor: And then Mr. Anders had reasonable cause to believe
that [the ATV] had been obtained through the commission of a
theft offense. Now, again, this is where circumstantial evidence is
important because we can’t look into the mind of a Defendant.
We have no testimony as to what he was thinking or what he
knew. So you sort of have to put yourself in the Defendant’s
position.
(Doc. No. 145 at 401).
{¶68} Anders claims that the prosecutor’s remarks referenced his decision
not to testify and thereby created an improper inference of his guilt to the jury. The
record reflects that before jury instructions were given, and outside of the presence
of the jury, Anders’ trial counsel objected to these statements and asked that his
objection be made part of the record. The trial court then stated the following.
Trial Court: The Court is going to obviously make sure the
record is complete. Mr. Zografides has done that. Mr. Zografides
is making his record. He’s not requesting any action by the Court.
Closing argument is each side’s attempt to summarize the
evidence. Both of you, as far as I’m concerned, went off the
reservation just a tidge [sic], but nobody objected, so the record
is complete, and we’ll move on from there.
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Case No. 5-16-27
(Doc. No. 145 at 440).
{¶69} “The failure to object to error, alone, is not enough to sustain a claim
of ineffective assistance of counsel.” State v. Holloway, 38 Ohio St. 3d 239, 244
(1988). A defendant must also show that he was materially prejudiced by the failure
to object. Id. Moreover, it is well established that the decision of trial counsel to
not object falls within the realm of trial tactics and does not establish ineffective
assistance of counsel.5
{¶70} Based on the foregoing, we find that Anders has not shown that his
trial counsel’s performance was deficient or that the result would have been
different if his trial counsel had objected to the prosecutor’s statement in front of
the jury during closing argument. Therefore, we conclude that Anders has failed to
demonstrate any prejudice based upon his counsel’s representation and we overrule
the fourth assignment of error.
{¶71} For all these reasons, the assignments of error are overruled and the
judgment of conviction and sentence is affirmed.
Judgment Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
5
See e.g., State v. Mundt, 115 Ohio St. 3d 22, 2007-Ohio-4836, ¶ 90, quoting United States v. Payne, 741
F.2d 887, 891 (C.A.7, 1984) (“ ‘A competent trial attorney might well eschew objecting * * * in order to
minimize jury attention to the damaging material.’ ”); State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, ¶
42 (stating that “[a] reasonable attorney may decide not to interrupt his adversary’s argument as a matter of
strategy”); State v. Clay, 7th Dist. Mahoning No. 08MA2, 2009-Ohio-1204, ¶ 141 (stating that “[l]imiting
objection during closing is a trial tactic to avoid trying to draw attention to statements”).
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