State v. Gilliam

[Cite as State v. Gilliam, 2016-Ohio-2950.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, : Case Nos. 15CA19
15CA20
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
CHARLES R. GILLIAM, II :
Defendant-Appellant. : RELEASED 05/09/2016
APPEARANCES:
Jesse A. Atkins, Atkins And Atkins, Attorneys At Law, LLC, Circleville, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecuting Attorney, and Heather M.J. Armstrong,
Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.
Hoover, J.
{¶1} Defendant-appellant, Charles R. Gilliam, II (“Gilliam”), appeals the judgments of
the Pickaway County Common Pleas Court, finding him guilty of one count of intimidating a
witness, a third degree felony; and two counts of theft, one being a fifth degree felony, and one
being a first degree misdemeanor. Gilliam was sentenced to 18 months in prison for the
intimidation offense and to community control for the theft offenses.
{¶2} In this consolidated appeal, Gilliam contends that the trial court erred by not
declaring a mistrial after it was disclosed at his jury trial that during the course of the State’s
investigation he had agreed to participate in a polygraph examination. However, because the trial
court immediately instructed the jury to disregard any mention of the polygraph test, it did not
abuse its discretion in denying Gilliam’s motion for a mistrial.
Pickaway App. Nos. 15CA19 and 15CA20 2
{¶3} Gilliam also contends that his theft convictions are inconsistent with his acquittal
on a burglary charge and must be set aside. Because inconsistency between several counts of a
multi-count indictment is not the type of inconsistency that warrants setting aside a jury’s
verdict, we disagree.
{¶4} Next, Gilliam contends that his theft convictions and intimidation of a witness
conviction are against the manifest weight of the evidence. However, the State presented an
abundance of evidence establishing Gilliam’s guilt; and even in the face of contradicting
evidence, we cannot say that the record indicates that the jury clearly lost its way in reaching its
conclusions. Accordingly, we reject this argument.
{¶5} Finally, Gilliam argues that his trial counsel rendered ineffective assistance of
counsel by failing to disclose a key defense exhibit to the State prior to trial thereby causing its
exclusion at trial. Because Gilliam has failed to demonstrate how the admittance of the trial
exhibit would have resulted in a different outcome, we disagree.
{¶6} Accordingly, we overrule all four of Gilliam’s assignments of error and affirm the
trial court’s judgments.
I. Facts and Procedural History
{¶7} On December 5, 2014, in trial court case number 2014 CR 303, Gilliam was
indicted on charges of one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the
second degree, and two counts of theft in violation of R.C 2913.02(A)(1), felonies of the fifth
degree. On April 10, 2015, he was separately indicted in trial court case number 2015 CR 136,
on a single count of intimidating a witness in violation of R.C. 2921.04(B)(2), a felony of the
third degree. Gilliam pleaded not guilty to all counts in both indictments; and the trial court
consolidated the indictments for the purpose of trial.
Pickaway App. Nos. 15CA19 and 15CA20 3
{¶8} The matter proceeded to a two-day jury trial on May 14th and 15th, 2015. Several
witnesses testified during the State’s case-in-chief, and during Gilliam’s case-in-chief. It was
adduced at trial that between 4:00 a.m. and 4:30 a.m. on September 9, 2014, someone entered the
home of P.D. and G.G. while they slept and took numerous items of personal property including:
a laptop computer, a television, a Coach purse, two wallets, two cell phones, credit cards, $70.00
cash, and a Coach checkbook holder. Upon waking up and noticing the missing items, G.G.
called law enforcement authorities. As a result, a deputy from the Pickaway County Sheriff’s
Office was dispatched to the home and arrived around 5:45 a.m. The deputy testified that he
observed a set of footprints in the dew-covered yard and a puddle of liquid on the street near the
victims’ driveway. No signs of forced entry were observed; however, a back door of the home
was unlocked. The victims’ home is located in Orient, Ohio.
{¶9} P.D. testified that in the days following the burglary he discovered suspicious
activity on his checking account. He called the Pickaway County Sheriff’s Office and reported
that his debit card had been used at several locations. He was able to provide officers with
locations, times, and transaction amounts. Ultimately, it was determined that his card had been
used at Meijers, Sterling One Stop (a gas station), The Buckeye Store, Family Dollar, Walmart,
and Raising Canes restaurant.
{¶10} Detective Rex Emrick of the Pickaway County Sheriff’s Office also testified at
trial. Emrick, the lead detective investigating the burglary, was able to obtain a receipt and video
surveillance from Sterling One Stop and Walmart, and a video from Meijers. Emrick testified
that after viewing the videos he determined that the individual using the card was Gilliam. The
videos from Sterling One Stop and Meijers were played for the jury and admitted as evidence.
Pickaway App. Nos. 15CA19 and 15CA20 4
{¶11} According to Emrick, he and Detective Rob Reeser interviewed Gilliam on
September 19, 2014. Gilliam was accompanied at the Sheriff’s Office by his mother, Lynn
Lambert, and his then girlfriend, Miriah Crissinger. A recording of the interview was played at
trial. A transcript of the interview also exists in the record. During the interview, Gilliam denied
any personal knowledge about the burglary; instead indicating that he had only heard about it
from his mother. Gilliam was also shown still shots from the store videos where P.D.’s debit card
was used. Gilliam then admitted to using a debit card; however, he claimed that he had received
the card from Tyler Stone and was told to use it. At the conclusion of the interview, Gilliam
indicated that Stone had “set [him] up” by giving him the card to use.
{¶12} Detective Emrick also interviewed Crissinger on September 19, 2014. According
to Emrick, on that day, Crissinger denied having any knowledge about the burglary or knowing
of any possible involvement by Gilliam.
{¶13} Based on the video surveillance and a tip from Mandie Clayton, Crissinger’s
mother, Emrick obtained a warrant to search Gilliam’s home. The search did not turn up
evidence of the burglary; however, Gilliam’s cell phone was seized based on information that
there were text messages in reference to the burglary on the phone. A subsequent search warrant
was then obtained to search the contents of the cell phone. Located within the phone were
photographs of the purse and wallet belonging to G.G.
{¶14} During the course of the investigation, Emrick also interviewed Tyler Stone.
When Stone came for his interview he brought a flat screen television and indicated that Gilliam
had sold him the television. The television was subsequently identified as the television taken
from the victims’ home.
Pickaway App. Nos. 15CA19 and 15CA20 5
{¶15} Finally, Emrick testified that he was able to confirm that Gilliam had rented a
room from the Star City Inn in Grove City, Ohio, on the day the search warrant was executed at
his house. A receipt from the Star City Inn, bearing Gilliam’s name, was admitted as evidence at
trial.
{¶16} Crissinger also testified at trial. Crissinger and Gilliam had ended their
relationship some time after the September 19th interview with Emrick; and Crissinger admitted
at trial that she lied during her September 19th interview. According to Crissinger, a short time
after the burglary, Gilliam told her that he walked into the home, grabbed as much as he
physically could, heard a dog bark, and then left the residence. Crissinger also stated that Gilliam
told her that he had taken purses, wallets, cell phones, a laptop, a television, and credit cards. On
the day of the incident, Crissinger claimed that she, Kaylie Schooley, and Stone accompanied
Gilliam to downtown Columbus so he could sell the cell phones. Crissinger also testified that
Gilliam sold some of the other stolen items, that the purses were disposed of at a hotel in Grove
City, Ohio, and that she witnessed Gilliam destroying the credit cards.
{¶17} Schooley also testified during the State’s case-in-chief. Schooley indicated that
she and Gilliam were friends. According to Schooley, on September 9, 2014, she travelled to
Gilliam’s home with Stone and Crissinger. While she was outside of the home, she witnessed
Stone exit the Gilliam home with a television and also witnessed Stone place the television in the
vehicle. Schooley also testified that on that same day, she, Stone, Crissinger, and Gilliam all
drove to Columbus so Gilliam could sell two cell phones. Schooley denied knowing how Gilliam
had acquired the cell phones.
{¶18} The State also presented Clayton’s testimony at trial. Clayton testified that
Gilliam had admitted to her that he was responsible for the burglary and that he was by himself
Pickaway App. Nos. 15CA19 and 15CA20 6
on the night of the incident. Clayton stated that Gilliam had texted her requesting that she help
him dispose of items from the burglary, specifically the purse and laptop. According to Clayton,
Gilliam indicated that the items should not be sold to anyone she cared about. Clayton described
her relationship with Gilliam as rocky, one in which they would often fight and then make-up.
{¶19} Clayton also testified that on February 27, 2015, she, her stepfather, Donald
Wallen, and her mother stopped at a gas station in Harrisburg, Ohio, to purchase gas. As Clayton
exited the gas station store she heard someone yell “bitch”. She then turned and saw Gilliam,
who continued to yell at her, calling her a “snitch”. Clayton testified, specifically, that Gilliam
told her she was lucky “he didn’t have a female with him right then to kick [her] ass * * * for
being a snitch.” Clayton admitted at trial that she yelled back at Gilliam and got caught up in the
moment, but that she also felt threatened and afraid. She also testified that Gilliam knew she was
going to testify against him at trial when the confrontation occurred.
{¶20} Wallen also testified at trial. He testified that he broke-up the confrontation
between Clayton and Gilliam at the gas station. According to Wallen, he heard Gilliam say to
Clayton “bring dad out here and I’ll kick his ass” and “I’ll get some bitch to kick your ass”.
{¶21} In his case-in-chief, Gilliam presented the testimony of several witnesses
including Abid Hussain, an employee of the Harrisburg gas station. Hussain testified that he
witnessed the confrontation between Gilliam and Clayton. According to Hussain, Clayton
instigated the confrontation by screaming at Gilliam and Gilliam said nothing other than “leave
me alone”. Hussain testified that law enforcement never took a statement from him or otherwise
questioned him about the incident.
{¶22} Gilliam also testified during his case-in-chief and denied any involvement in the
burglary and theft. According to Gilliam, Stone was his “pot dealer”, and Stone would often
Pickaway App. Nos. 15CA19 and 15CA20 7
supply him with property to sell on his behalf. In exchange for selling the items of property,
Gilliam would be allowed to keep the profits over a set amount; and he received a reduction in
the price of marijuana. Gilliam testified that on the day of the incident Stone showed him two
cell phones and he agreed to sell the cell phones for Stone. He, Stone, Schooley, and Crissinger
then travelled to Columbus to sell the cell phones. He did not believe the cell phones were stolen.
After selling the phones, Gilliam testified that he returned to his home briefly, and then later met
with Stone at Stone’s residence. It was at Stone’s residence that Gilliam claimed to have first
seen the rest of the stolen property. According to Gilliam, it was at that time that Stone solicited
him to sell the rest of the property. Gilliam agreed to sell the property, took pictures of the
property with his cell phone, and listed the items for sale on Craig’s List.
{¶23} Gilliam also testified that Stone gave him the debit card to use. Gilliam admitted
to using the card at Sterling One Stop, Meijers, Raising Canes restaurant, and Walmart. He
claimed that he used the card to purchase items for Stone, and in exchange, Stone allowed him to
keep a few of the items. He was also present when Stone used the card at Family Dollar but he
denied having used the card at The Buckeye Store. Gilliam claimed that he did not know the card
was stolen when he used it; and he thought the card belonged to Stone’s parents even though the
last name on the card differed from Stone’s last name. Gilliam also testified about renting a room
at the Star City Inn. According to Gilliam, he rented the room because he felt “caught off guard”,
and unsafe in his own home after the Sheriff’s Office arrived with the search warrant. He denied
bringing any of the stolen items to the hotel.
{¶24} Gilliam also testified at trial that he never confessed to Clayton that he was
responsible for the burglary. He also denied threatening Clayton at the gas station. Instead,
Gilliam testified that he tried to ignore Clayton at the gas station but she confronted him and
Pickaway App. Nos. 15CA19 and 15CA20 8
called him an “F—er”. He did admit to saying some things back, but denied he ever threatened
her. He specifically denied saying he was going to kick her ass or that he was going to find a
bitch to whip her ass. He also denied calling her a snitch or saying he was going to whip her
dad’s ass.
{¶25} Finally, Gilliam testified that he was involved in a serious car accident on January
9, 2014, wherein he shattered his hip and pelvis, and was in a coma for 18 days. As a result of
the accident Gilliam walks with the aid of a brace. Gilliam testified that in September 2014, he
was still getting familiar with the brace, was in extreme pain, had trouble lifting objects, and
could not walk long distances.
{¶26} Gilliam’s mother Lynn Lambert and stepfather Corky Lambert also testified
during the defense’s case-in-chief. Corky testified that the family owns two vehicles, and that
both vehicles were present at their home when he awoke at approximately 5:00 a.m. on
September 9, 2014. Lynn testified that Gilliam was present and drove her to work on the
morning of the burglary. Both claimed that Gilliam did not have access to any other vehicles.
{¶27} At the conclusion of trial, the jury found Gilliam not guilty of burglary, but guilty
of two counts of theft, one a felony of the fifth degree, the other a misdemeanor of the first
degree. The jury also found Gilliam guilty of one count of intimidating a witness, a felony of the
third degree. The trial court sentenced Gilliam to 18 months in prison on the intimidating a
witness count, and to community control on the two counts of theft. The trial court further
ordered that the prison term be served consecutively with the community control sentence.
{¶28} Shortly thereafter, the trial court journalized sentencing entries in each case.
Gilliam filed timely notices of appeal from both trial court cases. We consolidated the appeals.
II. Assignments of Error
Pickaway App. Nos. 15CA19 and 15CA20 9
{¶29} Gilliam assigns the following errors for our review:
First Assignment of Error:
The Appellant’s convictions for Theft and Intimidation of a Witness were against
the manifest weight of the evidence.
Second Assignment of Error:
Appellant’s convictions for Theft are the result of the erroneous presentation of
offenses of similar import, as well as the failure to provide the jury the
opportunity to convict for receiving stolen property, both of which resulted in an
inconsistent and erroneous verdict and should be accordingly overturned.
Third Assignment of Error:
Appellant’s representation during the trial phase of this matter was ineffective and
appellant’s conviction should be reversed.
Fourth Assignment of Error:
The disclosure of a request for polygraph examination was prejudicial error
requiring a mistrial.
III. Law and Analysis
{¶30} For ease of analysis, we elect to address Gilliam’s assignments of error out of
order.
A. Mention of Polygraph Examination
{¶31} In his fourth assignment of error, Gilliam contends that the trial court erred in
overruling his request for a mistrial. Specifically, Gilliam argues that a disclosure during the
State’s case-in-chief that investigators requested that Gilliam submit to a polygraph examination
was prejudicial error requiring a mistrial.
Pickaway App. Nos. 15CA19 and 15CA20 10
{¶32} When the recording of Gilliam’s interview with law enforcement officers was
played for the jury, it was disclosed that the officers requested that Gilliam submit to a polygraph
examination; and Gilliam indicated he would be willing to do so. Upon the disclosure of this
information, the trial court immediately excused the jury from the courtroom for a brief recess.
Defense counsel then moved for a mistrial and argued that the mention of a request for polygraph
examination constituted prejudicial error that could not be cured by a jury instruction. The State,
on the other hand, argued that a curative instruction would be sufficient to cure the error. The
trial court expressed dissatisfaction with the State’s decision to play an un-redacted version of
the recording to the jury, but ultimately decided that a curative instruction would be an
appropriate resolution. Thus, the trial court overruled the motion for a mistrial and instructed the
jury that it was “to completely disregard and not give any consideration to the fact the defendant
was asked to take a polygraph.” The trial court also instructed the jury that the polygraph “has
nothing to do with this case, and you will disregard that and act as though you never heard that.”
{¶33} Whether or not to grant a mistrial is within the sound discretion of the trial court,
and its decision will not be reversed absent an abuse of that discretion. State v. Koon, 4th Dist.
Hocking No. 15CA17, 2016-Ohio-416, ¶ 26. An abuse of discretion occurs when the trial court
makes a decision that is unreasonable, arbitrary, or unconscionable. Id. “In general a mistrial
should not be granted based on an error or irregularity unless an accused's substantial rights are
adversely affected.” Id. at ¶ 27.
{¶34} Generally, “polygraph test results are admissible into evidence only when the
defense and prosecution agree to its admissibility.” State v. Landrum, 4th Dist. Highland No.
14CA12, 2014-Ohio-5714, ¶ 9, citing State v. Dutiel, 5th Dist. Perry No.2012–CA–11, 2012–
Ohio–5349, ¶ 20, and State v. Wine, 3d Dist. Auglaize No. 2–12–01, 2013–Ohio–2837, ¶ 23.
Pickaway App. Nos. 15CA19 and 15CA20 11
“Ohio law also precludes the admission of the willingness or unwillingness of a party to take a
polygraph examination.” State v. Graves, 1st Dist. Hamilton No. C-950022, 1995 WL 540115,
*3 (Sept. 13, 1995). “However, the mere mention of the phrase ‘polygraph examination’ by a
witness testifying on behalf of the state does not necessarily result in prejudice to the accused.”
Id. And the Supreme Court of Ohio, in a case where a detective made a spontaneous comment
that the defendant had taken a lie detector test and failed it, found there was no abuse of
discretion in not declaring a mistrial because the trial court promptly instructed the jury to
disregard the comment and erase it from their minds. State v. Holt, 17 Ohio St.2d 81, 83-84, 246
N.E.2d 365 (1969). The Court noted that: “In view of the court’s immediate action in this
respect, we do not feel justified in holding that the judge’s refusal to order a mistrial was
prejudicial error.” Id. at 84. Thus, “[i]mplicit in the holding in Holt, is that the court must clearly
instruct the jury to disregard the inadmissible comment.” State v. Storms, 4th Dist. Meigs No.
492, 1993 WL 49445, *2 (Feb. 19, 1993). Finally, jurors are presumed to follow curative
instructions. State v. Mockbee, 2013-Ohio-5504, 5 N.E.3d 50, ¶ 39 (4th Dist.).
{¶35} In the case sub judice, the trial court promptly and clearly gave a curative
instruction to the jury to disregard any mention of the request for polygraph examination. We
also note that the reference at issue did not state the result of any polygraph examination that
Gilliam might have taken. Accordingly, the trial court’s decision to overrule the motion for a
mistrial and to rely on the curative instruction was not an abuse of discretion. Gilliam’s fourth
assignment of error is not well taken and is overruled.
B. Inconsistent Verdicts
{¶36} In his second assignment of error, Gilliam contends that the jury's verdicts
regarding the burglary and theft charges are inconsistent. Specifically, he asserts that the jury’s
Pickaway App. Nos. 15CA19 and 15CA20 12
theft convictions contradict its burglary acquittal and argues that the jury was forced to render
inconsistent and erroneous verdicts because the State presented offenses of similar import to the
jury, and because the jury was not afforded the opportunity to convict on the lesser offense of
receiving stolen property.
{¶37} First, we note that “ ‘[i]nconsistent verdicts on different counts of a multi-count
indictment do not justify overturning a verdict * * *.’ ” State v. Gapen, 104 Ohio St.3d 358,
2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138, quoting State v. Hicks, 43 Ohio St.3d 72, 78, 538
N.E.2d 1030 (1989). “ ‘The several counts of an indictment containing more than one count are
not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses
to different counts, but only arises out of inconsistent responses to the same count.’ ” Id., quoting
State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978), paragraph two of the syllabus.
“Thus, a verdict will not be set aside merely because the findings necessary to support the
conviction are inconsistent with the findings necessary to acquit the defendant of another
charge.” State v. Reine, 4th Dist. Scioto No. 06CA3102, 2007-Ohio-7221, ¶ 68, citing Browning
v. State, 120 Ohio St. 62, 71, 165 N.E. 566 (1929). “[T]he sanctity of the jury verdict should be
preserved and could not be upset by speculation or inquiry into such matters to resolve the
inconsistency.” State v. Lovejoy, 79 Ohio St.3d 440, 444, 683 N.E.2d 1112 (1997).
{¶38} The cases are clear that consistency between two verdicts in a multi-count
indictment is not necessary. Thus, even if such an inconsistency exists in the case sub judice,
such inconsistency does not mandate a reversal of Gilliam’s conviction.
{¶39} Furthermore, Gilliam’s contention that the jury was forced to render inconsistent
verdicts by his being indicted and tried for allied offenses of similar import is also misplaced.
Even if we were to assume that the theft and burglary counts in this case were allied offenses of
Pickaway App. Nos. 15CA19 and 15CA20 13
similar import, we note “[a] defendant may be indicted and tried for allied offenses of similar
import, but may be sentenced on only one of the allied offenses.” State v. Whitfield, 124 Ohio
St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 17. In other words, “a defendant may be found guilty
of allied offenses but not sentenced on them.” Id. “R.C. 2941.25(A)’s mandate that a defendant
may be ‘convicted’ of only one allied offense is a protection against multiple sentences rather
than multiple convictions.” Id. at ¶ 18. “Nothing in the plain language of the statute or in its
legislative history suggests that the General Assembly intended to interfere with a determination
by a jury or judge that a defendant is guilty of allied offenses. * * * [B]y enacting R.C.
2941.25(A), the General Assembly condemned multiple sentences for allied offenses, not the
determinations that the defendant was guilty of allied offenses.” Id. at ¶ 26. Thus, “[b]ecause
R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the
determination of the defendant’s guilt for committing allied offenses remains intact, both before
and after the merger of allied offenses for sentencing.” Id. at ¶ 27 and paragraph three of the
syllabus.
{¶40} As the Supreme Court of Ohio makes abundantly clear in Whitfield, the State may
indict and try a defendant for allied offenses of similar import. Thus, Gilliam’s contention that
the jury should not have been given the opportunity to deliberate on both the burglary and theft
counts because they are allied offenses of similar import is misplaced. Moreover, we fail to
comprehend how the State’s decision to try Gilliam on both offenses forced the jury to render
inconsistent verdicts.
{¶41} Finally, we disagree with Gilliam’s contention that the jury should have been
given the opportunity to convict him of receiving stolen property, rather than theft, and that the
failure to provide such opportunity forced the jury to render inconsistent verdicts. First, the State
Pickaway App. Nos. 15CA19 and 15CA20 14
“ ‘has great discretion in deciding which charges should be filed and may decide, for a myriad of
reasons, not to prosecute on certain charges notwithstanding that sufficient evidence exists to
support a conviction.’ ” State v. Conklin, 12th Dist. Butler No. CA94-03-064, 1995 WL 128388,
*3 (Mar. 27, 1995), quoting State ex rel. Tipton v. Schisler, 4th Dist. Scioto No. 90CA1926,
1991 WL 192733, *3 (Sept. 24, 1991). Moreover, “[t]he mere fact that appellant’s conduct
violates more than one statute does not force the state to prosecute him under the lesser statute.”
State v. Cooper, 66 Ohio App.3d 551, 553, 585 N.E.2d 868 (4th Dist.1990); see also State v.
Spearman, 6th Dist. Lucas No. L-01-1373, 2004-Ohio-1641, ¶ 37, and State v. Jackson, 10th
Dist. Franklin No. 96APA04-504, 1996 WL 684135, *4 (Nov. 26, 1996). More importantly,
even if we were to assume, as Gilliam argues, that the failure to present the offense of receiving
stolen property to the jury led to inconsistent verdicts, such a result does not constitute reversible
error. As discussed above, inconsistency between verdicts does not mandate a reversal of
Gilliam’s conviction.
{¶42} For all of the foregoing reasons, we overrule Gilliam’s second assignment of
error.
C. Manifest Weight of the Evidence
{¶43} In his first assignment of error, Gilliam contends that his convictions for theft and
intimidation of a witness are against the manifest weight of the evidence. Gilliam argues that the
evidence adduced at trial does not support the theft convictions because it does not demonstrate
that he knowingly obtained or exerted control over the victims’ property without their consent, or
that he purposefully acted to deprive the victims of their property. This argument is consistent
with Gilliam’s theory that he should have been charged with receiving stolen property rather than
theft. In regards to his conviction for intimidation of a witness, Gilliam argues that the greater
Pickaway App. Nos. 15CA19 and 15CA20 15
weight of the evidence demonstrates that Clayton was the instigator of the confrontation, and that
he did not threaten her during the confrontation. In support of this argument, Gilliam cites the
testimony of Hussain, the gas station employee. He also argues that he had “no real motive to
threaten or intimidate anyone in this matter for a crime he did not commit.”
{¶44} In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011–Ohio–6254, 960 N.E.2d 955, ¶
119. “Although a court of appeals may determine that a judgment of a trial court is sustained by
sufficient evidence, that court may nevertheless conclude that the judgment is against the weight
of the evidence.” Thompkins at 387. But the weight and credibility of evidence are to be
determined by the trier of fact. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d
818, ¶ 132. “A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony
of any witness who appears before it.” State v. West, 4th Dist. Scioto No. 12CA3507, 2014–
Ohio–1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues
because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice
inflections, and to use these observations to weigh their credibility. Id.{¶45} The jury found Gilliam guilty of two counts of theft and a single count of
intimidating a witness. Theft is defined as: “[n]o person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property or services *
* * [w]ithout the consent of the owner or the person authorized to give consent”. R.C.
Pickaway App. Nos. 15CA19 and 15CA20 16
2913.02(A)(1). In defining intimidation of a witness, R.C. 2921.04(B)(2) states: “[n]o person,
knowingly and by force or by unlawful threat of harm to any person or property or by unlawful
threat to commit any offense or calumny against any person, shall attempt to influence,
intimidate, or hinder * * * [a] witness to a criminal or delinquent act by reason of the person
being a witness to that act”.
{¶46} Here, the State’s evidence presented at trial, which included testimony from law
enforcement officers, the victims, and associates of Gilliam, supported the jury’s conclusion that
Gilliam knowingly exerted control over the victims’ property without their consent and with
purpose to deprive them of their property. For instance, Clayton testified at trial that Gilliam had
told her that he had stolen items in Orient, Ohio. Further, Clayton testified that Gilliam had asked
for her help in selling the stolen purse and laptop belonging to the victims. Crissinger, Gilliam’s
ex-girlfriend, provided more details about Gilliam’s involvement. Specifically, Crissinger
testified that Gilliam had told her that he had taken purses, wallets, cell phones, a laptop, a
television, and credit cards from the victims’ home. Crissinger also claimed to have seen Gilliam
destroy credit cards and dispose of a purse at a hotel in Grove City, Ohio. Moreover, both
Crissinger and Schooley testified that Gilliam possessed and sold two cell phones on the same
day that the victims reported the theft of two cell phones from their home. Finally, video and still
shots from various stores was presented at trial that showed Gilliam using the debit card of one
of the victims. The State also presented photographs of the stolen purse and wallet taken from
Gilliam’s cell phone shortly after the items were stolen.
{¶47} Gilliam testified at trial that he did not steal the items; instead, he only agreed to
sell the items for Stone. However, the jury was free to believe all, part, or none of Gilliam’s
testimony. West at ¶ 23; see also State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-
Pickaway App. Nos. 15CA19 and 15CA20 17
2996, ¶ 29. Moreover, when conflicting evidence is presented at trial, a conviction is not against
the manifest weight of the evidence simply because the jury believed the testimony presented by
the State. State v. Tyson, 4th Dist. Ross No. 12CA3343, 2013–Ohio–3540, ¶ 21.
{¶48} Likewise, while conflicting testimony was presented regarding the intimidation of
a witness charge, we reiterate that the jury was in the best position to judge and weigh the
credibility of the witnesses. Furthermore, Gilliam’s argument that he had no motive to threaten
or intimidate Clayton because he was innocent of the burglary charge is misplaced. At the time
of the threats, Gilliam did not know that he would be acquitted of the burglary charge.
{¶49} Based on the evidence before it, the jury neither clearly lost its way nor created a
manifest miscarriage of justice in finding Gilliam guilty of the two counts of theft and the
intimidation of a witness count. Accordingly, we overrule Gilliam’s first assignment of error.
D. Assistance of Counsel
{¶50} Finally, in his third assignment of error, Gilliam alleges that he received
ineffective assistance of counsel. Specifically, Gilliam contends that he was prohibited from
introducing a defense exhibit containing his phone records from the morning of the burglary
because his trial counsel failed to disclose the existence of the exhibit to the State prior to trial.
Gilliam claims that the exhibit “might very well have led to a different outcome in this case”
because the phone records “might have provided insight into [his] whereabouts, mental state, and
other potential suspects in this case.”
{¶51} Criminal defendants have a right to counsel, including a right to the effective
assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d
763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–Ohio–1366, ¶ 21. To
establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1)
Pickaway App. Nos. 15CA19 and 15CA20 18
that his counsel's performance was deficient and (2) that the deficient performance prejudiced the
defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State
v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient
performance, the defendant must prove that counsel's performance fell below an objective level
of reasonable representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel's errors, the result of the proceeding would have been different.”
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to
establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,
2008-Ohio-968, ¶ 14. In Ohio, there is a presumption that a properly licensed attorney is
competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).
{¶52} Here, even if we were to assume that counsel’s performance was deficient,
Gilliam still cannot establish that his counsel’s performance resulted in prejudice – i.e. the result
of the proceedings would have been different. At trial, even though the trial court did not allow
the phone records to be displayed or admitted as an exhibit, it did allow Gilliam’s mother to
testify about the phone records. Specifically, Gilliam’s mother testified that she viewed her son’s
phone records from the day of the incident and that there was “activity from 2:08 A.M. to about
9:00 something or 8:00”. She also testified that there were a number of calls that morning from a
number associated with Stone. Thus, the evidence that was contained within the phone records
was presented to the jury, albeit, in an alternative form. Moreover, we fail to see how this piece
of evidence would have altered the outcome of Gilliam’s trial even if presented in exhibit form.
The fact that Gilliam was active on his cell phone near the time of the burglary does not prove, as
Gilliam would like this Court to believe, that he could not have committed the offenses. If
Pickaway App. Nos. 15CA19 and 15CA20 19
anything, the evidence is inculpatory and proves that Gilliam was awake during the time the
offenses were committed. In short, there is no indication that the results of the proceeding would
have been different even if defense counsel had properly assured the admittance of the exhibit at
trial.
{¶53} For the forgoing reasons, we overrule Gilliam’s third assignment of error.
IV. Conclusion
{¶54} Having overruled all of Gilliam’s assignments of error, we affirm the judgments
of the trial court.
JUDGMENTS AFFIRMED.
Pickaway App. Nos. 15CA19 and 15CA20 20
JUDGMENT ENTRY
It is ordered that the JUDGMENTS ARE AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County
Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ____________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.