State v. O'Leary

[Cite as State v. O'Leary, 2016-Ohio-8095.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-16-14
PLAINTIFF-APPELLEE,
v.
TERRY L. O'LEARY, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 13-16-15
PLAINTIFF-APPELLEE,
v.
TERRY L. O'LEARY, OPINION
DEFENDANT-APPELLANT.
Appeals from Seneca County Common Pleas Court
Trial Court Nos. 15 CR 0259 and 15 CR 0010
Judgments Affirmed
Date of Decision: December 12, 2016
APPEARANCES:
Jennifer L. Kahler for Appellant
Rebeka Beresh for Appellee
Case Nos. 13-16-14 and 13-16-15
WILLAMOWSKI, J.
{¶1} Defendant-appellant Terry L. O’Leary (“O’Leary”) brings this appeal
from the judgments of the Court of Common Pleas of Seneca County finding him
guilty of receiving stolen property and of violating the terms of his community
control sanctions. O’Leary claims that 1) the conviction was not supported by
sufficient evidence; 2) the conviction is against the manifest weight of the evidence,
and 3) that he was denied the effective assistance of counsel. For the reasons set
forth below, the judgments are affirmed.
{¶2} This case stems from a claim that on November 14, 2015, O’Leary had
driven a taxi cab that had been reported as stolen. Doc.A 2.1 At the time of the
alleged offense, O’Leary was under community control sanctions. Doc.B 31. A
community control violation was filed on November 25, 2015. Doc.B 38. On
December 9, 2015, the Seneca County Grand Jury indicted O’Leary on one count
of receiving stolen property in violation of R.C. 2913.51(A), (C), a felony of the
fourth degree. Doc.A 2. The matter proceeded to a bench trial, which was held on
April 14, 2016. At the conclusion of the trial, the trial court found O’Leary to be
guilty of the charged offense. 2016 Doc. 31. On May 6, 2016, O’Leary waived his
right to a revocation hearing on the community control violation and admitted to the
1
As there are two different cases with two different records in this case, the dockets will be identified
separately. The docket for trial court case no. 15-CR-0259, which is the primary case raised on appeal, and
appellate case number 13-16-15 will be identified as “Doc.A” The docket for trial court case no. 15-CR-
0010 and appellate case number 13-16-14 will be identified as “Doc.B”
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violation based upon his conviction in trial court case no. 15-CR-0259. Doc.B 50.
O’Leary was then sentenced to a prison term of nine months with credit for 73 days
for violating the terms of his community control. Id. That same day, a sentencing
hearing was held on the receiving stolen property conviction. Doc.A 33. The trial
court ordered Appellant to serve a prison term of 14 months in prison with credit
for 171 days of time served on this conviction. Id. The sentence was ordered to be
served consecutive to that for the community control violation for a total prison term
of 23 months. Id. O’Leary filed a timely notice of appeal in both cases. Doc.A 37
and Doc.B 54. On appeal O’Leary raises the following assignments of error.
First Assignment of Error
The trial court erred in finding [O’Leary] guilty of receiving
stolen property where the State failed to introduce sufficient
evidence to support the conviction.
Second Assignment of Error
The trial court erred in finding [O’Leary] guilty of receiving
stolen property when the conviction was against the manifest
weight of the evidence.
Third Assignment of Error
[O’Leary] was not provided effective assistance of counsel when
[O’Leary’s] attorney failed to request that the trier of fact
consider unauthorized use of a vehicle.
Fourth Assignment of Error
The trial court erred in finding [O’Leary] violated the terms of
his community control for the reason he was convicted of
receiving stolen property.
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Case Nos. 13-16-14 and 13-16-15
Trial Testimony
{¶3} In order to address the first and second assignments of error, a review
of the evidence presented at trial must occur. The State presented the testimony of
six witnesses. The first witness was Scott McIntyre (“McIntyre”). McIntyre
testified that he had been friends with O’Leary since they were children. Tr. 8. On
November 8, 2015, McIntyre, O’Leary, and Tonya Currier (“Currier”) went out in
Findlay, Ohio. Tr. 8-9. Eventually, McIntyre dropped O’Leary off at the cab station
where O’Leary lived, and McIntyre and Currier went to Fostoria. Tr. 9. In Fostoria,
O’Leary pulled up beside them in a cab. Tr. 10. At the time, McIntyre did not think
it was strange because O’Leary lived above the cab company and worked for it as
well. Tr. 10. When they met up, O’Leary told him that he needed to get the cab
back to the station. Tr. 10. The cab said “Tiffin Cab Service” on the side. Tr. 11.
On cross-examination McIntyre indicated that he had “known William [Omlor] to
give [O’Leary] keys to his own personal vehicles and the cabs”, so seeing O’Leary
driving the cab did not seem odd. Tr. 13.
{¶4} Karen Bloom (“Bloom”) testified that she worked at the Southside
Drive Thru in Fostoria. Tr. 16-17. On November 14, 2015, she observed a “cab
flying up and down the road and a customer that came through crying.” Tr. 17. The
cab was a yellow Tiffin cab driven by a guy who was screaming and chasing another
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vehicle. Tr. 18. On both direct and cross-examination, Bloom indicated that she
did not know who the driver of the cab was. Tr. 20.
{¶5} William Omlor (“Omlor”) testified that he owns “Tiffin Service Cab.”
Tr. 21. On the side of each of his cabs is the logo with the name “Tiffin Service
Cab”, a phone number, and the cab number. Tr. 22. Omlor testified that he and
O’Leary had been friends for over 20 years and that he had employed O’Leary as a
“part-time midnight dispatcher, part-time taxi cab washer.” Tr. 23. At no time was
O’Leary employed as a driver. Tr. 23. On November 14, 2015, Omlor received a
phone call from one of his dispatchers about a missing cab. Tr. 24. Omlor instructed
her to notify the police that the cab unit 4-2 had been stolen. Tr. 24. Omlor then
went to Fostoria because of the reports of the driver of the cab being erratic. Tr. 24.
Omlor stopped the cab at the intersection of State Route 587 and Township Road
112 and determined that the cab was being driven by Currier at that time. Tr. 25.
Currier then jumped out of the vehicle and got into another vehicle. Tr. 26. Omlor
testified that he had not given O’Leary permission to use the vehicle that night. Tr.
26. Although Omlor thought of O’Leary as a friend, he testified that he did not give
O’Leary permission to drive the cab on November 14, 2015, and he was not doing
so as part of his job. Tr. 78.
{¶6} On cross-examination Omlor testified that O’Leary lived at the cab
station and had access to the cabs keys. Tr. 79. Omlor testified that if had known
O’Leary had the cab and there had been no complaints from Fostoria, he would not
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have called the police. Tr. 80. Omlor never believed that O’Leary meant to keep
the cab and he testified that he was not convinced that O’Leary had been the one to
use the cab. Tr. 80. However, if O’Leary were the one using the cab, Omlor would
consider it stolen. Tr. 80. Omlor admitted that in the past, he had given O’Leary
permission to drive his vehicles. Tr. 81. Omlor denied that O’Leary had ever made
“runs” in a cab for Omlor. Tr. 84. Though, Omlor admitted on redirect that he had
allowed O’Leary to drive a cab without a license to pick up parts for the cab
company. Tr. 85.
{¶7} Patricia Standley (“Standley”) testified that she resided in Fostoria. Tr.
91. On November 14, 2015, she heard an argument outside her house amongst
McIntyre, Currier, and O’Leary. Tr. 92. When they left, Standley saw O’Leary
drive away in a cab from “Tiffin Cab.” Tr. 92. Rebecca Nigh (“Nigh”) testified
that she lived with Standley. Tr. 95. Like Standley, Nigh heard the argument and
saw O’Leary leave driving a cab. Tr. 96.
{¶8} Detective Lieutenant Mark E. Marquis (“Marquis”) testified that he is
employed by the Tiffin Police Department. Tr. 98. Marquis testified that he
investigated the reported theft of the cab. Tr. 99. Omlor told Marquis that he had
located his cab in Seneca County, had stopped the cab, and that the driver had fled
from the vehicle. Tr. 100. His investigation led to an identification of O’Leary as
being the driver of the cab at some point in time that evening. Tr. 102-103. On
cross-examination, Marquis admitted that he had no direct evidence as to who had
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stolen the vehicle and that is why O’Leary was charged with receiving stolen
property. Tr. 107.
{¶9} After the State’s final witness, O’Leary’s attorney recalled Omlor to the
stand to testify for him. Tr. 109. Omlor stated that if O’Leary had called him, he
would have let him borrow one of his personal vehicles. Tr. 111. However, Omlor
reiterated that Omlor had not asked to borrow any vehicle and had not been given
permission to use any vehicle on November 14, 2015. Tr. 112.
{¶10} O’Leary then took the stand in his own defense. O’Leary testified that
he did some pickups or “runs” when working for Omlor though he did not have a
chauffeur’s license. Tr. 116. O’Leary indicated that he would regularly use
Omlor’s vehicle, including using a cab for his personal use. Tr. 116-17. O’Leary
admitted to driving the cab on November 14, 2015. Tr. 117. However, he had no
intention of doing anything other than returning the vehicle to Omlor. Tr. 117.
O’Leary testified that he had keys to the cab used that were given to him by Omlor.
Tr. 118. O’Leary indicated that he believed based upon the past practices and
statements by Omlor that he was allowed to use any of the vehicles, including the
cab, whenever he wanted. Tr. 118-19. Currier came into possession of the cab when
she took it from him and he followed her to try and retrieve it because he was
concerned what she would do with it. Tr. 119. According to O’Leary, the
relationship between him and Omlor was such that he had previously borrowed
vehicles without asking permission and that was accepted as normal. Tr. 121-22.
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On cross-examination, O’Leary admitted that he was not working when he took the
cab to Fostoria. Tr. 125-26.
Sufficiency of the Evidence
{¶11} O’Leary claims in the first assignment of error that the judgment of
the trial court was not supported by sufficient evidence. A claim of sufficiency of
the evidence raises a due process question concerning whether the evidence is
legally sufficient to support the verdict as a matter of law. State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, ¶219, 954 N.E.2d 596 (citing State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541). “On review of the sufficiency of
the evidence to support a criminal conviction, ‘the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶34, 840 N.E.2d
1032 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560).
{¶12} O’Leary 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
evidence that O’Leary 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. Omlor testified that he did not give O’Leary permission to use the
vehicle and that he had reported the vehicle as stolen. Multiple people testified that
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they had observed O’Leary driving the vehicle while in Fostoria. O’Leary admitted
to being in possession of the vehicle and that he had not received express permission
to use the vehicle. The testimony presented indicated that the cab was taken without
the permission of the owner, i.e. stolen, that O’Leary knew the vehicle had been
taken without the permission of the owner, and that he was in possession of it while
it was in the Seneca County section of Fostoria. Viewing the evidence in a light
most favorable to the State, the evidence is sufficient to support the charge of
receiving stolen property. The first assignment of error is overruled.
Manifest Weight of the Evidence
{¶13} In the second assignment of error, O’Leary claims that the verdict was
against the manifest weight of the evidence. When reviewing a judgment to
determine if it is against the manifest weight of the evidence, an appellate court
“review[s] 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 reversed and a new trial ordered.” State v.
Mendoza, 137 Ohio App.3d 336, 2000-Ohio-1689, 738 N.E.2d 822 (3d. Dist.). See,
also, State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new
trial should be granted only in the exceptional case in which the evidence weighs
heavily against conviction. Thompkins at 387. Although the appellate court acts as
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a “thirteenth juror,” due deference to the findings made by the fact-finder must still
be given. State v. Moorer, 3d Dist. 13-12-22, 2013-Ohio-650, ¶ 29.
{¶14} When reviewing this case, there is no question that the primary issue
for the trial court to determine was whether the defendant knew or should have
known the vehicle was stolen. Much of the finding of guilt rests upon a
determination of credibility. There is no dispute that O’Leary lacked the express
consent to use the vehicle on the night in question. Instead, the question raised is
whether O’Leary had been given implied consent to use the vehicle. If the trial
court believed O’Leary’s testimony that Omlor had given him implied consent to
use the vehicle freely, then it could be reasonably argued that O’Leary did not know
that the use would cause anyone to believe the vehicle was stolen. However, if the
trial court believed that Omlor had not given O’Leary implied consent to use the
vehicle whenever he wished, then O’Leary should have known that the vehicle
would be deemed stolen by the owner. After reviewing the evidence, this court does
not find that the trial court clearly lost its way and that a manifest miscarriage of
justice resulted. Therefore, the judgment is not against the manifest weight of the
evidence. The second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶15} O’Leary’s third assignment of error alleges that he was denied
effective assistance of counsel because his attorney failed to request the trial court
to consider the lesser charge of unauthorized use of a vehicle.
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In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.
{¶16} Here, O’Leary argues that he was prejudiced by his counsel failing to
request that the trial court also consider the misdemeanor charge of unauthorized
use of a vehicle. The failure to request that a trial court consider a lesser offense is
a matter of trial strategy and does not establish a claim of ineffective assistance of
counsel. State v. Griffie, 74 Ohio St.3d 332, 1996-Ohio-71, 658 N.E.2d 764. See
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also, State v. Lyle, 3d Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 37. For this
reason, the third assignment of error is overruled.
Community Control Violation
{¶17} Finally, O’Leary claims that the trial court erred in finding that he had
violated the terms of his community control due to the conviction for receiving
stolen property. This court has previously addressed the receiving stolen property
conviction in the prior assignments of error. Having found no error, the conviction
is affirmed. The terms of O’Leary’s community control included a provision that
he would obey all state laws. O’Leary failed to abide by that provision and admitted
to such at the hearing. Thus, the trial court did not err in finding that O’Leary had
violated the terms of his community control sanctions. The fourth assignment of
error is overruled.
{¶18} Having found no error prejudicial to the Appellant in the particulars
assigned and argued, the judgments of the Court of Common Pleas of Seneca
County are affirmed.
Judgments Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls
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