State v. Baker , 2020 Ohio 5094 ( 2020 )

[Cite as State v. Baker, 2020-Ohio-5094.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 19 CAA 12 0062
TERRANCE BAKER
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court
of Common Pleas, Case No. 19 CRI 02
0142
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 28, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL ADDISON M. SPRIGGS
Delaware County Prosecuting Attorney Assistant State Public Defender
250 East Broad Street, Suite #1400
R. JOSEPH VARVEL Columbus, Ohio 43215
Assistant Prosecuting Attorney
Delaware County Prosecutor’s Office
145 North Union Street
Delaware, Ohio 43015
Delaware County, Case No. 19 CAA 12 0062 2
Hoffman, P.J.
{¶1} Appellant Terrance Baker appeals the judgment entered by the Delaware
County Common Pleas Court convicting him of engaging in a pattern of corrupt activity
(R.C. 2923.32(A)(1)), additional prohibited activities ( R.C. 1315.55(A)(1)), trafficking in
cocaine (R.C. 2925.03(A)(1)), and receiving stolen property (R.C. 2913.51(A)), and
sentencing him to an aggregate prison term of four years. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} During the summer of 2018, Appellant and his girlfriend, Lindsey Clifford,
resided in an apartment in Columbus, Ohio. Also living in the apartment were Donald
Gorey, Shelley Hagerman, Antonio Estrada, and Leanna Jimenez. Jimenez moved into
the apartment at the request of Appellant and Clifford, who asked her “to do what’s going
on at Home Depot” in order to make money. Tr. 422.
{¶3} Gorey, Hagerman, Estrada, and Jimenez would travel to Home Depot
stores in the Columbus metro area, including stores in Delaware County, in a maroon
Trailblazer owned by Clifford. Sometimes Clifford would drive, and once or twice she
went into Home Depot with the group. Appellant did not travel with the group. The group
would enter the store and steal Milwaukee and DeWalt power tool sets. At one point in
time, the group went nearly every day to a Home Depot store in the area to steal power
tools.
{¶4} The group would return the tools to the apartment, where they would find
the value of the items on the internet. They would exchange the items with Appellant and
Clifford for a percentage value of either cash or crack cocaine. Appellant was in charge
of the cash, but either Appellant or Clifford would distribute crack cocaine in exchange for
Delaware County, Case No. 19 CAA 12 0062 3
the power tools. Clifford kept track of the transactions in a log book. Appellant then sold
the stolen tools to a man the group knew only as “The Russian.”
{¶5} During this time, Home Depot’s shoplifting policy allowed only asset
protection specialists (APS) to apprehend suspects or enter theft reports in the company’s
internal database. Regular store employees were authorized to report incidents to the
store manager, but were instructed not to stop suspects or call law enforcement. APS
employees were to enter incidents into the database within 24 hours of an incident.
Absent corresponding violence, individual incidents are typically not reported to law
enforcement; thus, 85-90% of incidents are not reported.
{¶6} Jamie Mansfield and Sean Frame worked for Home Depot out of Michigan
as organized retail crime investigators. In July of 2018, they became aware of the group
of theft incidents conducted by the people living in Appellant’s apartment. The group was
known inside the company as the Black Wig Group, based on Jimenez sometimes
wearing a black wig into the store as a disguise.
{¶7} Mansfield and Frame traveled to Ohio in August, 2018, to further investigate
the series of thefts. On August 7, 2018, they conducted surveillance outside a Delaware
Home Depot store. They observed a vehicle later identified as Clifford’s vehicle arrive at
the store. Clifford was driving the vehicle. Gorey and Jimenez entered the store and
stole a Milwaukee portable tool power kit. Frame and Mansfield followed the group to
another store in Franklin County. All three members of the group entered the store.
Clifford came out of the store with a DeWalt tool kit. She drove the Trailblazer to the front
of the store. Gorey and Jimenez pushed a cart out of the store at a rapid pace, loaded
Delaware County, Case No. 19 CAA 12 0062 4
items from the cart into the Trailblazer, and drove away. A cashier and some customers
came out of the store after seeing what was happening.
{¶8} Frame and Mansfield attempted to follow the Trailblazer, but lost it in traffic.
They eventually located the vehicle at the apartment complex where Clifford and
Appellant lived. They set up surveillance from a nearby Taco Bell parking lot. From there,
Frame and Mansfield watched Gorey, Jimenez and Appellant carrying DeWalt and
Milwaukee power tools from the apartment to the Trailblazer. Shortly thereafter, Appellant
drove away in the Trailblazer. Frame and Mansfield attempted to follow, but lost the
Trailblazer near a highway on-ramp.
{¶9} Surveillance continued throughout the next week, during which time the
group continued to steal tools from Home Depot stores throughout the Columbus area.
On August 17, 2018, law enforcement obtained and executed a search warrant on the
apartment. Police seized a marijuana bong, a marijuana grinder, loose marijuana, crack
pipes, Chore Boy, a syringe, digital scales, and a Spider security device. From the
bedroom shared by Clifford and Appellant, they seized notebooks containing UPC codes
or model numbers for tools. One of the notebooks had Clifford’s name written on it. They
also seized a Milwaukee charger and battery.
{¶10} Gorey, Jimenez and Clifford were arrested. Clifford called Appellant from
the jail, and Appellant told Clifford not to “mention anything about anything.” When she
called him again, Appellant told Clifford he “was thinking about shitting his head” and was
worried police had his phone. Clifford told Appellant to get out of town.
{¶11} Gorey and Jimenez agreed to cooperate with the police in exchange for
plea agreements. Appellant and Clifford were charged by joint indictment with engaging
Delaware County, Case No. 19 CAA 12 0062 5
in a pattern of corrupt activity (R.C. 2923.32(A)(1)), additional prohibited activities ( R.C.
1315.55(A)(1)), trafficking in cocaine ( R.C. 2925.03(A)(1)), trafficking in heroin (R.C.
2925.03(A)(1)) and receiving stolen property (R.C. 2913.51(A)). The case proceeded to
joint bench trial in the Delaware County Common Pleas Court. Following the presentation
of evidence, the court dismissed the charge of trafficking in heroin. Appellant was
convicted of the remaining charges. The court found the trafficking in cocaine and
receiving stolen property convictions merged into the additional prohibited activities
conviction, and the State elected to have Appellant sentenced for additional prohibited
activities. The court sentenced Appellant to four years incarceration for engaging in a
pattern of corrupt activity and to thirty months incarceration for additional prohibited
activities, to be served concurrently.
{¶12} It is from the November 12, 2019 judgment of conviction and sentence
Appellant prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ERRED IN DENYING TERRANCE BAKER’S
CRIM. R. 29 MOTION FOR ACQUITTAL, AND VIOLATED HIS RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF
SUFFICIENT EVIDENCE OF VENUE, IT CONVICTED HIM OF COUNTS
1, 2, 3, AND 5.
II. THE TRIAL COURT ERRED WHEN IT DENIED TERRANCE
BAKER’S RIGHT TO CONFRONT WITNESSES BY PERMITTING THE
STATE TO INTRODUCE HEARSAY EVIDENCE.
Delaware County, Case No. 19 CAA 12 0062 6
I.
{¶13} In his first assignment of error, Appellant argues the trial court erred in
denying his Crim. R. 29 motion for acquittal on the basis the State failed to present
sufficient evidence to establish venue in Delaware County.
{¶14} “A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient evidence.”
State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 164,
reconsideration denied, 147 Ohio St.3d 1480, 2016-Ohio-8492, 66 N.E.3d 766, citing
State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. “The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus.
{¶15} While venue is not an essential element of a charged offense, venue must
be proven by the state beyond a reasonable doubt unless it is waived by the defendant.
State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). Venue need not be
proven in express terms as long as it is established by all the facts and circumstances in
the case. State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969, paragraph one of syllabus
(1907).
{¶16} R.C. 2901.12 provides in pertinent part:
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be tried for all
Delaware County, Case No. 19 CAA 12 0062 7
of those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred. Without limitation on the
evidence that may be used to establish the course of criminal conduct, any
of the following is prima-facie evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
(2) The offenses were committed by the offender in the offender's
same employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender's line of travel in
this state, regardless of the offender's point of origin or destination.
{¶17} Appellant argues there is no evidence he participated directly in any of the
theft offenses in Delaware County, and there is insufficient evidence the offenses
committed by others in the Black Wig Group were in furtherance of the same purpose or
objective. We disagree.
{¶18} The trial court found as follows regarding venue:
Delaware County, Case No. 19 CAA 12 0062 8
As to venue, there was testimony from several witnesses, including
Mr. Frame, Mr. Mansfield, Mr. Gorey, Ms. Jimenez, that a portion of the
thefts here, and the receiving stolen property, occurred in Delaware County;
specifically, The Home Depot stores on State Route 23 in Orange
Township, Maxtown Road and Genoa Township.
As to the rest, the Court would find that the events that occurred in
Franklin County constitute a continuing course of conduct as it relates to the
events of this case.
{¶19} Tr. 1516.
{¶20} Appellant argues the testimony does not support a finding the members of
the Black Wig Group were involved in a common enterprise with the same purpose, as
the testimony of Jimenez and Gorey demonstrates they were involved in the enterprise
for their individual purposes of getting money and/or drugs, and members of the group
came and went throughout the relevant time period. We find the testimony, if believed by
the trier of fact, is sufficient to support a finding the group had a common purpose,
regardless of whether or not the persons involved in the group had individual motivations
for participating in the group’s common purpose. The testimony of Gorey and Jimenez
demonstrates the group stole merchandise from Home Depot stores, including stores in
Delaware County, which they would take back to the apartment they shared with
Appellant, and exchange for cash or drugs. At times, the group stole items from Home
Depot on a daily basis. Jimenez testified Appellant and Clifford asked her to live in their
apartment in order “to do what’s going on at Home Depot.” She further testified Appellant
Delaware County, Case No. 19 CAA 12 0062 9
was in charge of when members of the group would go to Home Depot stores to steal
more tools. Appellant would in turn sell the stolen goods to a man Gorey and Jimenez
knew as “The Russian.” We find there was sufficient evidence the acts were committed
in furtherance of the same purpose to support a finding of venue in Delaware County
pursuant to R.C. 2901.12(H)(3).
{¶21} The first assignment of error is overruled.
II.
{¶22} In his second assignment of error, Appellant argues the admission of
hearsay evidence violated his right to confront the witnesses against him. He specifically
argues the hearsay fell into several categories: observations of store employees of thefts
which took place inside the stores, both as relayed to Frame and Mansfield and as
detailed in the Risk 360 reports prepared by Home Depot employees; testimony
concerning a traffic stop conducted by Sgt. Clark of Antonio Estrada, who was driving a
vehicle belonging to “Ace,” another person some members of the group sold tools to; and
a PowerPoint presentation integrating incident reports, surveillance video, still
photographs, and commentary on the information presented.1
{¶23} The Confrontation Clause of the Sixth Amendment states, “In all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses
against him.” Out-of-court statements by a witness which are testimonial in nature are
barred, under the Confrontation Clause, unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). If testimony qualifies as
1The trial court did not admit the PowerPoint presentation into evidence. Tr. 1417. The contents of the
PowerPoint are therefore not at issue in this appeal.
Delaware County, Case No. 19 CAA 12 0062 10
nonhearsay, it does not implicate the Confrontation Clause. Id. at 59, citing Tennessee v.
Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); State v. Maxwell, 139
Ohio St. 3d 12, 9 N.E.3d 930, 2014-Ohio-1019, ¶131. Evid. R. 801(C) defines hearsay as
“a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” We review trial court rulings
which implicate the Confrontation Clause de novo. State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97, citing State v. Hymore, 9 Ohio St.2d 122,
128, 224 N.E.2d 126 (1967), and United States v. Henderson, 626 F.3d 326, 333 (6th Cir.
2010).
{¶24} We note the surveillance videos and photographs admitted into evidence
are not hearsay, as there are no statements in either the videos or the photographs.
Because they are not hearsay, they do not implicate the Confrontation Clause. Crawford,
supra. However, the trial court also admitted testimony concerning employees’
observations of thefts inside the store, as well as the Risk 360 reports prepared by Home
Depot employees which included SKU numbers, the value of the items stolen, and
descriptions of the thefts and the persons involved. The court found the testimony and
reports were admissible as present sense impressions and business records, and thus
exceptions to the hearsay rule pursuant to Evid. R. 803(1) and (6). The court found their
admission did not violate the Confrontation Clause, as they were non-testimonial in
nature.
{¶25} In Crawford, the United States Supreme Court suggested business records
are “by their nature” nontestimonial. Crawford at 56, 124 S.Ct. 1354. And subsequently
in State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 82, the
Delaware County, Case No. 19 CAA 12 0062 11
Supreme Court of Ohio held business records “are not ‘testimonial in nature because they
are prepared in the ordinary course of regularly conducted business and are “by their
nature” not prepared for litigation.’”
{¶26} However, in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct.
2527, 174 L.Ed.2d 314 (2009), the items of evidence at issue were reports by a company
which provided forensic analysis on seized substances to establish whether they were
illegal. The United States Supreme Court held despite the fact the records were kept in
the regular course of the company's business, the results of forensic drug testing were
testimonial—they were requested by the police and prepared for presentation at trial, and
were therefore subject to exclusion under the Confrontation Clause:
Respondent also misunderstands the relationship between the
business-and-official-records hearsay exceptions and the Confrontation
Clause. As we stated in Crawford: “Most of the hearsay exceptions covered
statements that by their nature were not testimonial--for example, business
records or statements in furtherance of a conspiracy.” Business and public
records are generally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but because--having been
created for the administration of an entity's affairs and not for the purpose
of establishing or proving some fact at trial--they are not testimonial.
Whether or not they qualify as business or official records, the analysts'
statements here--prepared specifically for use at petitioner's trial--were
Delaware County, Case No. 19 CAA 12 0062 12
testimony against petitioner, and the analysts were subject to confrontation
under the Sixth Amendment.
{¶27} (Citations omitted.) Id. at 324, 129 S.Ct. 2527. Because the analyst who
created the records did not testify and was not subject to cross-examination, the forensic
analysis was inadmissible because its admission violated the Confrontation Clause. Id.{¶28} Thereafter, in Bullcoming v. New Mexico, 564 U.S. 647, 663-65, 131 S.Ct.
2705, 180 L.Ed.2d 610 (2011), the Court held admission of the report of a defendant's
blood-alcohol level violated the defendant's right to confront the analyst who prepared the
report. The Court held the report was testimonial because it was a statement made in
order to prove a fact at defendant's criminal trial, and the testimony of a substitute analyst
who did not perform or observe the reported test did not satisfy the right to confrontation.
The lower court held the surrogate testimony was “adequate to satisfy the Confrontation
Clause in this case because [the actual analyst] ‘simply transcribed the resul[t] generated
by the gas chromatograph machine,’ presenting no interpretation and exercising no
independent judgment,” and the defendant's “true accuser” was “the machine, while [the
testing analyst's] role was that of ‘mere scrivener.’ ” Id. at 659-60, 131 S.Ct. 2705. The
Supreme Court disagreed, noting the surrogate analyst's testimony “reported more than
a machine-generated number,” and the surrogate could not convey what the original
analyst knew and observed, or expose any lapses or inaccuracies by the original analyst.
Id. at 660, 131 S.Ct. 2705.
{¶29} In the instant case, we find the SKU numbers and the value of items taken,
included in the Risk 360 reports, were non-testimonial in nature. These figures served a
Delaware County, Case No. 19 CAA 12 0062 13
business purpose of Home Depot separate and apart from their potential use for
prosecution, as these figures were necessary for inventory and accounting records of the
stores impacted. However, we find the descriptions of the thefts included in the reports
and relayed orally to Frame and Mansfield were testimonial in nature. Although there
was evidence most of the Risk 360 reports generated by the company do not result in
prosecution, we find no business use for the descriptions of the perpetrators of theft
offenses in the store other than the potential use for apprehension and prosecution. We
find this particularly true in the instant case, where some of these observations were made
subsequent to Frame and Mansfield traveling from Michigan to Ohio for the express
purpose of investigating and apprehending the suspects involved in the Black Wig Group.
In fact, shortly after arriving in Ohio, Frame and Mansfield made contact with law
enforcement in Delaware County concerning their investigation. We find these
descriptions were testimonial in nature, and their admission therefore violated Appellant’s
right to confront the witnesses against him.
{¶30} But even in cases where the defendant has established a violation of rights
under the Confrontation Clause, the Supreme Court of Ohio has consistently applied a
harmless-error analysis to determine whether the issue prejudiced the defendant. See
McKelton at ¶ 192, quoting Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23
L.Ed.2d 284, (1969).
{¶31} Crim.R. 52(A) defines harmless error in the context of criminal cases and
provides: “Any error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded.” Under the harmless-error standard of review, “the
government bears the burden of demonstrating that the error did not affect the substantial
Delaware County, Case No. 19 CAA 12 0062 14
rights of the defendant.” State v. Perry, 101 Ohio St.3d 118, 2004–Ohio–297, 802 N.E.2d
643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d
508 (1993). First, it must be determined whether the defendant was prejudiced by the
error, i.e., whether the error had an impact on the verdict. Second, it must be determined
whether the error was not harmless beyond a reasonable doubt. 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. State v. Harris, 142 Ohio
St.3d 211, 2015–Ohio–166, 28 N.E.3d 1256, ¶ 37.
{¶32} The instant case was a bench trial, in which the trial court explained at
length its reasoning for finding Appellant guilty. The trial court based its finding of guilt
almost exclusively on the testimony of Gorey and Jimenez. While Appellant argues their
testimony is not credible, the trial court took note of the potential credibility issues with
their testimony, and explained its reasons for finding the testimony in the instant case to
be credible. Tr. 1507-1511. Nothing in the trial court’s explanation of its reasons for
finding Appellant guilty suggests the court relied on the Risk 360 reports or the
descriptions of the offenses and perpetrators provided by employees of Home Depot. Tr.
1512-1521.The trial court further had the opportunity to view the photos and videos, in
which both Gorey and Jimenez identified themselves and others in the group stealing
items. The videos showed members of the group leaving Home Depot without paying
for items. In addition, Frame and Mansfield followed the group to Appellant’s apartment
after items were taken from a store in Delaware County, and observed Appellant loading
into Clifford’s SUV the types of tool kits Gorey and Jimenez admitted to stealing from
Home Depot at Appellant’s request. We find admission of the Risk 360 reports and
Delaware County, Case No. 19 CAA 12 0062 15
testimony concerning observations of employees of the Home Depot stores to be
harmless beyond a reasonable doubt in the instant case.
{¶33} Appellant also argues his right to confront witnesses against him was
violated when Det. Gannon testified he received a report from Det. Clark concerning the
stop of a grey Honda, occupied by Antonio Estrada. Appellant objected on the basis of
hearsay. The trial court overruled the objection, finding the testimony concerning Det.
Clark’s stop of the vehicle admissible as a present sense impression pursuant to Evid. R.
803(1). Appellant did not object to this testimony on the basis its admission violated his
right to confront witnesses against him, and in discussing the Confrontation Clause
issues, the trial court did not consider discuss this testimony. In any event, we find its
admission was harmless error. Appellant argues the State failed to prove all of the goods
stolen by the Black Wig Group were received by Appellant and Clifford. Evidence Estrada
was stopped in a car belonging to another suspect to whom the Black Wig Group
sometimes sold tools tends to benefit the defense, rather than harm the defense. Further,
the trial court believed and relied on Jimenez’s testimony 90% of the goods stolen by the
group went to Appellant, and not to the man whose car Estrada was allegedly driving
when stopped. Tr. 1512. The trial court further admitted into evidence the notebooks
kept by Clifford, which established the value of the items which the group stole, brought
back to the apartment, and traded to Appellant for cash and drugs.
Delaware County, Case No. 19 CAA 12 0062 16
{¶34} The second assignment of error is overruled.
{¶35} The judgment of the Delaware County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Baldwin, J. concur