State v. Dye

[Cite as State v. Dye, 2019-Ohio-885.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr.,
-vs- :
:
CHESTER D. DYE : Case No. 18-CA-54
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Common Pleas
Court Case No. 17-CR-00954
JUDGMENT: Affirmed in Part, Reversed in part
and Remanded
DATE OF JUDGMENT: March 13, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CLIFFORD J. MURPHY JAMES A. ANZELMO
20 South Second Street 446 Howland Drive
4th Floor Gahanna, OH 43230
Newark, OH 43055
Licking County, Case No. 18-CA-54 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Chester D. Dye appeals the June 15, 2018 judgment
of conviction and sentence of the Court of Common Pleas of Licking County, Ohio.
Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 1} Gary Shannon has lived on a 32 acre farm property on Evans Road in
Northport, Licking County Ohio for more than 12 years. In early October, 2017, Shannon
experienced some health issues which required a 3-day hospital stay. When he returned
home, he noticed someone had entered his property and removed a 15 foot trailer, a log
splitter, and other miscellaneous items. Shannon had built the log splitter himself and
welded his initials into the push plate of the splitter. It was very heavy, and would require
more than one person and a truck/trailer to move. The trailer was also homemade by
Shannon. Because it was used for farm chores only, Shannon never licensed the trailer.
{¶ 2} Shannon did not immediately contact law enforcement because he was
frustrated. This was not the first time someone had stolen from him. Shannon did not turn
the matter into his homeowner’s insurance either. Instead, he set up a surveillance
camera on his property.
{¶ 3} Shannon required hospitalization a second time towards the end of October
2017. When he returned home from that stay, he found several bags of feed missing.
Additionally, there were piles of horse tack set near the door of an outbuilding as if staged
for a later pickup. Shannon checked his surveillance camera which had captured images
of two women, both unknown to Shannon, loading sacks of grain into a Dodge Charger.
Licking County, Case No. 18-CA-54 3
{¶ 4} Shannon reported the matter to the Licking County Sheriff’s Office. Deputy
Teresa Holmes handled the matter. She reviewed the images from Shannon’s camera
and recognized both women, one of which she knew as appellant’s girlfriend who lives
with appellant at 17102 McKee Hill Road.
{¶ 5} Shannon’s wife posted the photos captured by the camera on Facebook
and asked if anyone in the neighborhood was familiar with the vehicle. People who
responded advised they had seen the vehicle on McKee Hill Road.
{¶ 6} On October 23, 2017, upon seeing the Facebook post, Shannon’s neighbor
James Larue went to visit Shannon. Larue took care of Shannon's animals when Shannon
was unable, and was familiar with Shannon's farm equipment, in particular the log splitter.
The two men decided to take a drive down McKee Hill Road. As they drove past
appellant's home at 17102 McKee Hill Road, they spotted Shannon's log splitter sitting in
front of the house, with Shannon's initials on the push plate visible from the road. Larue
drove to the end of the road where he pulled over and contacted the sheriff. As they sat
there, 2 women came out of the house, got in a white pickup truck and drove up to the
men. They asked what the men were doing and why they had gone by the house so
slowly. The men replied they were just driving around. The women returned to appellant's
home where "a lot of activity" followed – people "scurrying around and leaving." A man
came out of the house and covered the log splitter with a tarp. He then got into a blue car
and left the scene.
{¶ 7} Deputy Holmes is familiar with appellant and has been to his property
several times. She responded to Shannon and Larue's call. That same evening,
Shannon's log splitter, 15-foot trailer, and miscellaneous items were recovered from
Licking County, Case No. 18-CA-54 4
appellant's property. The trailer was found parked in front of one of three sheds belonging
to appellant, and still did not have a license plate. The value of the log splitter and trailer
was approximately $2,300.
{¶ 8} Deputy Holmes obtained a search warrant for the three sheds on appellant's
property. The sacks of grain taken from Shannon's barn were found in one of the sheds.
Holmes spoke with appellant briefly on the day the warranted was executed. Appellant
did not deny the items found were on his property, and further did not deny that some
were stolen. Rather, appellant claimed it was all part of an insurance scam. He further
claimed he had purchased the trailer, but could not say from whom. Then, the day of trial,
he produced a bill of sale stating he had purchased the trailer from his girlfriend. But the
bill of sale was for a shorter trailer which was registered to his girlfriend and had been
issued a license plate.
{¶ 9} As a result of these events, on November 22, 2017, appellant was charged
with one count of receiving stolen property, a felony of the fourth degree.
{¶ 10} Appellant was released on bond and the trial court ordered him to submit to
supervision by pre-trial release. Appellant signed the terms and conditions of pre-trial
release which included the requirement that he be subject to random urine drug screens
(UDS). Wes Luce of the Licking County Felony Probation Services supervised appellant.
On February 1, 2018, appellant arrived at Luce's office for a scheduled appointment and
UDS. While Luce monitored appellant's UDS, instead of urinating into the test cup,
appellant removed a bottle containing someone else's urine from his pocket and poured
the urine into the test cup. Once caught, appellant admitted to using drugs two days prior.
Licking County, Case No. 18-CA-54 5
{¶ 11} In light of this development as well as developments regarding appellant's
pending charge for receiving stolen property, on March 29, 2018, the Licking County
Grand Jury returned a superseding indictment charging appellant with one count of
receiving stolen property, a felony of the fifth degree, and one count of tampering with
evidence, a felony of the third degree.
{¶ 12} Appellant pled not guilty to these charges and elected to proceed to a jury
trial which took place on June 14, 2018. Before voir dire, the court indicated there had
been an off the record discussion regarding severance of the charges and that the court
would be inclined to deny a severance.
{¶ 13} The state presented evidence from five witnesses pertaining only to
Shannon's stolen log splitter and trailer as well as the tampering with evidence charge.
Appellant testified on his own behalf. He testified that the trailer and log splitter were not
found on his property, but rather an adjacent property. He then testified, however, that he
has items on that adjacent property. Additionally, appellant stated Deputy Holmes
misunderstood him and that he had told her "this stinks of an insurance scam" not that it
was part of an insurance scam.
{¶ 14} After retiring to deliberate, the jury asked to see the bill of sale for the trailer.
That item, however, had been excluded from evidence as it had not been properly
authenticated. A short time later, the jury found appellant guilty as charged. It further found
the value of the property in question for the receiving stolen property charge was greater
than $1000 but less than $7500. Appellant was subsequently sentenced to one year for
receiving stolen property, and three years for tampering with evidence. The trial court
ordered appellant to serve the sentences consecutively.
Licking County, Case No. 18-CA-54 6
{¶ 15} Appellant filed an appeal, and the matter is now before this court for
consideration. He raises six assignments of error as follow:
I
{¶ 16} "THE TRIAL COURT ERRED BY NOT HOLDING SEPARATE TRIALS ON
DYE'S CHARGES OF TAMPERING WITH EVIDENCE AND RECEIVING STOLEN
POPERTY, IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY
THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTUTION"
II
{¶ 17} "THE TRIAL COURT PLAINLY ERRED BY FAILING TO INSTRUCT THE
JURY THAT IT MUST UNANIMOUSLY AGREE ON THE SAME SPECIFIC INCIDENT
OF RECEIVING STOLEN PROPERTY ALLEGED IN THE SINGLE COUNT IN THE
INDICTMENT AGAINST CHETER DYE, IN VIOLATION OF HIS RIGHTS TO DUE
PROCESS OF LAW, A FAIR TRIAL, JURY UNANIMITY, AND THE DOUBLE
JEOPARDY PROTECTIONS PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION."
III
{¶ 18} "DYE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
Licking County, Case No. 18-CA-54 7
IV
{¶ 19} DYE'S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16,
ARTICLE I OF THE OHIO CONSTITUTION."
V
{¶ 20} DYE'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION."
VI
{¶ 21} THE TRIAL COURT UNLAWFULLY ORDERED DYE TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDEMENTS TO THE UNITED STATES
CONSTITUTION."
{¶ 22} For ease of discussion, we address some of appellant's assignments of
error out of order as well as together.
I
{¶ 23} In his first assignment of error, appellant argues the trial court erred when it
denied his motion to sever and hold separate trials. We disagree.
{¶ 24} Crim.R. 8(A) governs joinder of offenses and states offenses may be joined
if they are of the same or similar character, are based on the same act or transaction, or
Licking County, Case No. 18-CA-54 8
are based on two or more acts or transactions connected together or part of a common
scheme or course of criminal conduct. Joinder is liberally permitted to conserve judicial
resources, reduce the chance of incongruous results in successive trials, and diminish
inconvenience to witnesses. See, State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d
1288 (1981). Joinder is appropriate where the evidence is interlocking and the jury can
easily segregate the proof required for each offense. State v. Czajka, 101 Ohio App.3d
564, 577–578, 656 N.E.2d 9 (8th Dist. Cuyahoga 1995).
{¶ 25} A defendant may move to sever the charges pursuant to Crim.R. 14. In such
a motion, the defendant bears the burden to show his rights would be prejudiced by
joinder. State v. Strobel, 51 Ohio App.3d 31, 33, 554 N.E.2d 916 (3rd Dist. Henry 1988).
{¶ 26} We note appellant made no written motion to sever the offenses set forth in
the March 29, 2018 superseding indictment. Further, there is no record of any oral motion
by appellant, nor of any discussion of the matter at the June 14, 2018 trial or any time
before. The sole reference to severance appears on page 84 of the trial transcript and is
as follows:
The Court: Okay. We also had also talked before the trial about Mr.
Barth had asked about the possibility of separating the charges for
trial and I had represented that one of the considerations the Court
looks at under that circumstance was whether or not the charges
would cause confusion with the jurors, and in this case they're very
separate and distinct, easy to distinguish and aren't going to cause
confusion, and the fact that, you know, the witnesses are here,
Licking County, Case No. 18-CA-54 9
today's the day of trial and I would not look favorably on that today in
all likelihood.
Anything you wish to add to that Mr. Murphy?
Mr. Murphy: No Your Honor.
The Court: Mr. Barth?
Mr. Barth: No sir.
{¶ 27} Not only is there no motion in the record, there is no ruling made by the
court. Rather, the court merely indicated a favorable ruling would be unlikely. Because
there is not record of either a motion or a ruling, we must overrule appellant's first
assignment of error.
IV, V
{¶ 28} We address appellant's fourth and fifth assignments of error together. In
these assignments of error, appellant argues his convictions are against the manifest
weight and sufficiency of the evidence. We disagree.
{¶ 29} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing
court is to examine the entire record, weigh the evidence and all reasonable inferences,
Licking County, Case No. 18-CA-54 10
consider the credibility of witnesses and determine "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. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction."
Martin at 175.
{¶ 30} Appellant was indicted on one count of receiving stolen property, the value
of which was $1000 or more, but less than $7500. To support a conviction for receiving
stolen property, the state was required to produce evidence to show appellant received,
retained, or disposed of property of another knowing or having reasonable cause to
believe that the property has been obtained through commission of a theft offense. R.C.
2913.51(A).
{¶ 31} During trial the state presented evidence pertaining to only two items; the
log splitter and the 15-foot trailer. The evidence produced demonstrated appellant was in
possession of Shannon's log splitter, which was appraised at between $1100 and $4000.
Shannon made the log splitter himself and welded his initials into the push plate of the
device. He and Larue drove by appellant's residence and spotted the splitter sitting in
appellant's front yard. Appellant initially told Deputy Holmes the log splitter belonged to
him, then at trial said he knew nothing about the splitter, other than it had been sitting
where it was found for 3 weeks. T.121-122, 128-130, 184, 213, 276.
{¶ 32} Deputy Holmes testified that when Shannon's trailer was also found on
appellant's property, it was parked in front of a shed belonging to appellant. T. 214-215.
Licking County, Case No. 18-CA-54 11
Appellant initially told Deputy Holmes he had purchased the trailer, but he could not
produce a name when asked from whom he had bought the trailer. T. 218-219. On the
day of trial, however, appellant produced a bill of sale which alleged he had purchased
the trailer from his girlfriend. The bill of sale, however, was for a shorter trailer. T. 220-
222. In any event, because the document was not properly authenticated, it was not
admitted in to evidence.
{¶ 33} When Holmes later returned to appellant's property to execute the search
warrant, appellant changed his story and claimed the items in his possession were all part
of an insurance scam. Holmes followed up with Shannon's insurance company and found
no evidence of any claims filed by Shannon.
{¶ 34} The state presented sufficient evidence to support a finding that appellant
committed the crime of receiving stolen property by unlawfully obtaining both items
belonging to Shannon, valued at more than $1000, but less than $7500, knowing or
having reasonable cause to believe they had been obtained through the commission of a
theft offense. Further, as outlined above, given appellant's evolving and inconsistent
explanations, the jury did not lose its way in believing the state's evidence over
appellant's. We find, therefore, his conviction for receiving stolen property is not against
the manifest weight of the evidence.
{¶ 35} Next, appellant argues his conviction for tampering with evidence is against
the manifest weight and sufficiency of the evidence. Specifically, appellant argues that he
because he did not actually follow through with his intention to substitute someone else's
urine for his own, that he can only be guilty of attempted tampering with evidence. We
disagree.
Licking County, Case No. 18-CA-54 12
{¶ 36} First, counsel for appellant never requested a jury instruction for attempt,
and never advanced this theory at trial. He therefore forfeits all but plain error here on
appeal. Appellant here claims he never actually dumped the urine he brought with him in
a bottle, into the test cup. A review of the record reveals otherwise. At page 195 of the
transcript, Luce described what happened while he was monitoring appellant's UDS:
When he was preparing to give us a sample, I noticed his hand was
going into the pocket of his sweatshirt, he had like a hooded
sweatshirt on, and he pulled out the bottle that we have, a device
with the cap unscrewed [referring to state's exhibit 9 a container
confiscated from appellant during the UDS]. He then proceeded to
empty an amount of liquid into the [test] cup, and then at that point
we stopped – I saw it, I stopped the test.
{¶ 37} We therefore find no error, plain or otherwise. There was sufficient evidence
produced by the state to support a conviction for tampering with evidence and the jury did
not lose its way in so convicting appellant.
{¶ 38} The fourth and fifth assignments of error are overruled.
II
{¶ 39} In his next assignment of error, appellant argues the trial court erred when
it failed to instruct the jury that is must unanimously agree on each specific incident of
receiving stolen property alleged in the single count of the indictment. We disagree.
Licking County, Case No. 18-CA-54 13
{¶ 40} Crim.R. 30 governs instructions. Subsection (A) states the following in
relevant part: “On appeal, a party may not assign as error the giving or the failure to give
any instructions unless the party objects before the jury retires to consider its verdict,
stating specifically the matter objected to and the grounds of the objection. Opportunity
shall be given to make the objection out of the hearing of the jury.”
{¶ 41} Counsel for appellant did not object to the jury instructions at trial and
concedes that we review this assignment of error for plain error.
{¶ 42} An error not raised in the trial court must be plain error for an appellate court
to reverse. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B). As
part of the inquiry into whether plain error occurred, a reviewing court “must examine the
error asserted by the [defendant] in light of all of the evidence properly admitted at trial
and determine whether the jury would have convicted the defendant even if the error had
not occurred.” State v. Slagle, 65 Ohio St.3d 597, 605, 605 N.E.2d 916, (1992). Appellant
bears the burden of demonstrating that the outcome of the trial clearly would have been
different but for the error. Long. at paragraph two of the syllabus. Notice of plain error “is
to be taken with the utmost caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
{¶ 43} "When a court of appeals engages in a plain-error analysis, it must conduct
a complete review of all relevant assignments of error in order to determine whether a
manifest miscarriage of justice has occurred that clearly affected the outcome of the trial."
State v. Hill, 92 Ohio St.3d 191, 2001-Ohio-141, 749 N.E.2d 274 at syllabus.
{¶ 44} As addressed in the fourth and fifth assignments of error above, appellant's
conviction for receiving stolen property is supported by sufficient evidence as it pertains
Licking County, Case No. 18-CA-54 14
to both the log splitter and the 15-foot trailer. Appellant cannot demonstrate, therefore,
that the outcome of his trial, would have been any different had the jury been required to
consider each item, save for appellant being convicted of two counts of receiving stolen
property instead of one.
{¶ 45} The second assignment of error is overruled.
III
{¶ 46} In his third assignment of error, appellant argues his counsel rendered
ineffective assistance by failing to request a jury instruction regarding appellant's own
testimony as to his prior criminal history, and further, by failing to object to the imposition
of court costs at the time of sentencing. We disagree.
{¶ 47} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.” Strickland
at 694, 104 S.Ct. 2052.
{¶ 48} Even if failing to request a limiting instruction as to appellant's prior record
could somehow be construed as deficient performance, appellant still cannot satisfy the
second Strickland prong. As discussed at length above, sufficient, credible evidence was
Licking County, Case No. 18-CA-54 15
produced to support appellant's convictions. Appellant therefore cannot demonstrate
prejudice.
{¶ 49} Appellant's court costs argument is also without merit. A defendant may
seek waiver of court costs with the trial court at any time, including after sentencing. R.C
2947.23(C). Appellant has therefore suffered no prejudice. State v. Davis, 5th Dist.
Licking No. 17CA55, 2017-Ohio-9445 ¶ 27.
{¶ 50} The third assignment of error is overruled.
VI
{¶ 51} Appellant's final assignment of error argues the trial court failed to make the
appropriate findings on the record before imposing consecutive sentences. The state
concedes this fact. We therefore grant appellant's final assignment of error, vacate his
sentence and remand the matter to the trial court for resentencing.
{¶ 52} The sixth assignment of error is granted.
Licking County, Case No. 18-CA-54 16
{¶ 53} The judgment of conviction of the Licking County Court of Common Pleas
is affirmed. Appellant's sentence is vacated, and the matter is remanded for resentencing.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/rw