State v. Small

[Cite as State v. Small, 2012-Ohio-149.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 10-CA-138
:
:
DOUGLAS D. SMALL : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
10-CR-00246
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 13, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT MATTHEW J. KINSMAN
Licking County Prosecutor 33 W. Main Street
Licking County, Ohio P.O. Box 4190
20 S. Second Street, Fourth Floor Newark, Ohio 43058-4190
Newark, Ohio 43055
DOUGLAS D. SMALL
Inmate #A639-643
Ross Correctional Institute
P.O. Box 7010
16149 St. Route 104
Chillicothe, Ohio 45601
[Cite as State v. Small, 2012-Ohio-149.]
Edwards, J.
{¶1} Appellant, Douglas Small, appeals his conviction and sentence entered in
the Licking County Court of Common Pleas. Appellant was convicted by a jury of one
count of Robbery, a felony of the second degree, in violation of R.C. 2911.02(A)(2), one
count of Intimidation of a Victim/Witness in a Criminal Case, a felony of the third degree,
in violation of R.C. 2921.04(B), two counts of Assault, misdemeanors of the first degree,
in violation of R.C. 2903.13(A)(1), and one count of Intimidation, a felony of the third
degree, in violation of R.C. 2921.03(A).
{¶2} The trial court sentenced appellant to a term of three years on each of the
felony counts ordered to be served consecutively to one another for a total prison term
of nine years. The misdemeanor sentences were ordered to be served consecutively
with each other and concurrently with the other counts.
{¶3} Counsel for appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth two proposed
assignments of error. Appellant did file a pro se brief alleging one additional
assignment of error as well as one assignment of error which mirrors one raised by
counsel relative to the consecutive sentences.
{¶4} Appellant raises the following potential assignments of error:
I
{¶5} “THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S
CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL.”
Licking County App. Case No. 10-CA-138 3
II
{¶6} “THE TRIAL COURT ERRED IN FAILING TO MAKE THE REQUIRED
FINDINGS UNDER R.C. 2929.14(E)(4) TO JUSTIFY CONSECUTIVE SENTENCES.”
III
{¶7} “TRIAL COUNSEL WAS INEFFECTIVE IN MULTIPLE WAYS, AND THE
CUMMULATIVE EFFECT RESULTED IN PREJUDICE OF DEFENDANT. (1) FAILING
TO RENEW CRIM.R. 29 MOTION FOR ACQUITTAL AT THE CLOSE OF ALL
EVIDENCE. (2) FAILING TO CALL KEY WITNESSES (3) FAILING TO PRESENT
DEFENDANTS PHONE RECORDS.”
{¶8} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
{¶9} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s
Licking County App. Case No. 10-CA-138 4
motion to withdraw. For the reasons which follow, we affirm the judgment of the trial
court:
I
{¶10} In his first assignment of error, appellant argues the trial court erred in
denying appellant’s motion for acquittal.
{¶11} Crim. R. 29(A) requires a trial court, upon motion of the defendant, to
enter a judgment of acquittal of one or more offenses charged in an indictment if the
evidence is insufficient to sustain a conviction of the offense or offenses. However, a
trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record
demonstrates that reasonable minds can reach different conclusions as to whether each
material element of a crime has been proven beyond a reasonable doubt. On appeal of
the denial of a Crim .R. 29(A) motion, 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.
Williams, 74 Ohio St.3d 569, 576, 1996-Ohio-91, 660 N.E.2d 724, citing State v. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶12} Appellant was convicted of Robbery, Intimidation of a Crime
Victim/Witness, two counts of Assault, and Intimidation of a Public Servant. The facts
presented in the State’s case taken in the light most favorable to the State established
that appellant and three other men were involved in a day of heavy drinking. The men
moved their location during the course of the day ending up near appellant’s home.
Appellant physically attacked two of his drinking partners and demanded one of their
cell phones. After taking the cell phone, appellant told the phone’s owner that he would
Licking County App. Case No. 10-CA-138 5
kill him if he called the police. Two other witnesses testified to the events. Police were
called, and appellant was arrested. Thereafter, the cell phone was discovered after a
search of appellant’s house.
{¶13} At the time of the arrest, appellant threatened police. Furthermore, he
was acting in such a manner as to require police to institute additional safeguards in
transporting appellant.
{¶14} Upon review of the evidence, we find appellant has failed to demonstrate
that when the evidence is considered in a light most favorable to the State a reasonable
trier of fact could not have found that all of the elements of each offense were proven
beyond a reasonable doubt. For this reason, we find the trial court did not err in
denying appellant’s motion for acquittal.
{¶15} Appellant’s first assignment of error is overruled.
II
{¶16} In his second assignment of error, appellant maintains the trial court
improperly imposed consecutive sentences.
{¶17} In State v. Foster, the Ohio Supreme Court held, trial courts “have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶ 100.
{¶18} The Ohio Supreme Court recently reaffirmed its hold in Foster, “We hold
that the decision of the United States Supreme Court in Oregon v. Ice does not revive
Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
Licking County App. Case No. 10-CA-138 6
2929.41(A), which were held unconstitutional in State v. Foster. Because the statutory
provisions are not revived, trial court judges are not obligated to engage in judicial fact-
finding prior to imposing consecutive sentences unless the General Assembly enacts
new legislation requiring that findings be made.” State v. Hodge, 2010 WL 5392914.
{¶19} Because the sentences in this case are within the range provided by R.C.
2929.14, the trial court did not abuse its discretion in imposing consecutive sentences.
{¶20} For this reason, appellant’s second assignment of error is overruled.
III
{¶21} In his final assignment of error, appellant avers he was denied effective
assistance of trial counsel because trial counsel failed to renew the motion for acquittal,
failed to call two of the four police officers who were at the scene of the offense, and
failed to introduce appellant’s phone records into evidence.
{¶22} We have already determined the motion for acquittal lacked merit,
therefore, appellant has not shown any prejudice due to the failure to renew the motion
for acquittal.
{¶23} With regard to failing to introduce certain witnesses, counsel's decision
regarding the calling of witnesses is within the purview of trial strategy. State v. Coulter
(1992), 75 Ohio App.3d 219, 230, 598 N.E.2d 1324; State v. Hunt (1984), 20 Ohio
App.3d 310, 312, 486 N.E.2d 108. The failure to subpoena witnesses for trial does not
violate counsel's duty to defendant absent a showing of prejudice. Id. Accordingly,
courts have traditionally been reluctant to find ineffective assistance of counsel in those
cases where an attorney fails to call a particular witness. See State v. Otte (1996), 74
Licking County App. Case No. 10-CA-138 7
Ohio St.3d 555, 565-66, 660 N.E.2d 711; State v. Williams (1996), 74 Ohio St.3d 456,
659 N.E.2d 1254.
{¶24} There is nothing in the record before us on appeal which would
demonstrate prejudice in failing to call the remaining two officers who were at the scene.
{¶25} As it relates to the failure to introduce phone records, likewise, the phone
records are not in the record before us. Appellant has again failed to demonstrate the
failure to introduce these records prejudiced appellant.
{¶26} For these reasons, appellant’s third assignment of error is overruled.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/as1031
[Cite as State v. Small, 2012-Ohio-149.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DOUGLAS D. SMALL :
:
Defendant-Appellant : CASE NO. 10-CA-138
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Attorney Kinsman
is permitted to withdraw as counsel of record. Costs assessed to appellant.
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JUDGES