State v. Hughes

[Cite as State v. Hughes, 2013-Ohio-1551.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98669
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES E. HUGHES
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-557592
BEFORE: S. Gallagher, P.J., Kilbane, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: April 18, 2013
ATTORNEY FOR APPELLANT
Michael V. Heffernan
75 Public Square
Suite 700
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brad S. Meyer
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Defendant-appellant, James Hughes, appeals his convictions for breaking and
entering, theft, and possessing criminal tools. He asserts that the record evidence does
not support his convictions. He further contends that a discovery violation occurred that
entitles him to a new trial. For the reasons that follow, we affirm.
{¶2} Peter Gordon, D.D.S., operates a dental office in Beachwood, Ohio. On
August 8, 2011, Gordon arrived at his office around 7:15 a.m., where he was met by the
dental assistant and saw “a lot of debris all over the place.” The doorframe on the main
entrance was “jimmied loose.” The lab had been broken into, as well as the conference
room. Gordon called the police.
{¶3} Gordon had closed the office on the previous Saturday around 1:00 p.m.
{¶4} A television, valued at $400, 1 was missing from the conference room.
Cabinet and desk drawers were open, a window was broken, and the petty cash box was
open on the floor. Approximately $150 to $175 was missing from the cash box. A
power drill, valued at $50, was also missing. Gordon spent approximately $3,100
repairing the damage to his office.
{¶5} The office was equipped with two motion cameras, one facing the front door
and the other facing the front desk.
1
Gordon had received the television as a “bonus” for purchasing other office equipment, and
he did not replace it.
{¶6} Exhibit No. 38 is video surveillance that the cameras recorded on August 7,
2011. It depicts somebody entering the front door, walking behind the desk, opening the
top drawer and then closing the top drawer, and then opening the bottom drawer.
{¶7} Despite the damage to the office, Gordon was still able to see patients on that
day. However, the break-in interfered with his staff’s ability to conduct administrative
business, such as processing insurance and scheduling appointments.
{¶8} The defense objected to the testimony of Officer Matthew Grams because the
state had not identified him as a potential witness. The state responded that it had
provided Officer Grams’s arrest report to the defense at the outset of the case and that it
was discussed during the pretrials. The state indicated if Officer Grams’s name was
omitted from the witness list, it was inadvertent. The state’s witness list did reserve the
right to call any of the people mentioned in the police report, which was authored by
Officer Grams. The court instructed the state to present a different witness in order to
allow the defense time to speak with Officer Grams. Defense counsel did speak with
Officer Grams and confirmed the defense had his police report for “quite some time.”
Over defendant’s continuing objection, the court allowed Officer Grams to testify.
{¶9} Officer Grams arrested defendant on August 13, 2011, around 11:20 p.m.
Officer Grams was on patrol duty when he observed a car sitting behind a business on
Northfield Road after business hours. The car drove away at a high rate of speed, drove
over a curb and through a grassy field. Officer Grams pursued the vehicle and initiated
a traffic enforcement stop. He identified the driver as defendant James Hughes.
Officer Grams discovered that defendant had multiple suspensions and an outstanding
warrant from the Parma Police Department. Officer Grams arrested defendant for
driving under suspension. Pursuant to the vehicle inventory, Officer Grams found a
crowbar, a white T-shirt, a flashlight, a pair of Mechanix gloves, and a small
sledgehammer in the car. Officer Grams testified that the items he observed at the time
of defendant’s arrest appear to be the same as some items he observed on the videotape of
the break-in.
{¶10} Officer Lieb testified that he responded to a call of breaking and entering at
Gordon Dental on August 8, 2011, around 7:35 a.m. He observed the broken window
and door, as well as debris, and the cash box lying on the floor in the reception area. He
spoke with Dr. Gordon and some office employees. Officer Lieb obtained and reviewed
the surveillance video footage and determined the exact time of the offense. He
identified state’s exhibit No. 30 as a frame capture of the suspect, which shows him with
a pair of gloves, “a unique looking flashlight,” and a pry bar. The suspect’s face is
obscured by a hoodie, and only the lower half of his face is visible. Officer Lieb
affirmed that the office employees had named a potential suspect who was not defendant.
{¶11} Investigator Finucan testified that he processed the crime scene in this case.
He took photographs and attempted to obtain fingerprints and DNA swabs. He was
able to obtain a very partial fingerprint from the cash box but not enough to make any
kind of comparison.
{¶12} Detective McFadden conducted a follow-up investigation in this case. He
reviewed the video of the break-in, which occurred on August 7, 2011, at 10:17 p.m. He
contacted the Northfield Village police after receiving a bulletin of defendant’s arrest for
a similar occurrence one week later. Det. McFadden forwarded a still copy of the
suspect from the videotape, state’s exhibit No. 30. The still shot depicted a portion of
the suspect’s face, a flashlight, the crowbar, and the gloves used during the break-in at the
dental office. The Northfield Village officer confirmed his belief that the suspect
matched defendant. Det. McFadden went to the Northfield Village Police Department
and viewed the evidence that had been seized upon defendant’s arrest. He photographed
the items, including the flashlight, the gloves, and the crowbar. Det. McFadden
concluded that the items were the same as those depicted on the video of the dental office
break-in. He also compared defendant’s booking photo with the suspect on the video
and believed it was the same person. For that reason, Det. McFadden never investigated
the other potential suspect that had been named by the dental office employees.
{¶13} By agreement of the parties, the theft count was amended to a first-degree
misdemeanor.
{¶14} The trial court dismissed the vandalism count pursuant to defendant’s
Crim.R. 29 motion, but overruled the motion as to the remaining counts.
{¶15} The jury found defendant guilty of breaking and entering, theft, and
possession of criminal tools, along with the furthermore specification. The court
imposed sentence, and defendant has assigned three errors for our review on appeal.
{¶16} In his first and second assignments of error, defendant contends his
convictions were not based on sufficient evidence and were against the manifest weight
of the evidence.
{¶17} When an appellate court reviews a claim of insufficient evidence, “‘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. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. The weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace,
109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶18} On the other hand, the weight of the evidence concerns the inclination of the
greater amount of credible evidence offered to support one side of the issue rather than
the other. State v. Robinson, 8th Dist. No. 96463, 2011-Ohio-6077, ¶ 14, citing State v.
Brindley, 10th Dist. No. 01AP-926, 2002-Ohio-2425, ¶ 16. When presented with a
challenge to the manifest weight of the evidence, an appellate court, after
“reviewing 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). An appellate court
should reserve reversal of a conviction as being against the manifest weight of the
evidence for only the most “‘exceptional case in which the evidence weighs heavily
against the conviction.’” Id.{¶19} Employing each standard, we find that defendant’s convictions were
supported by sufficient evidence and were not against the manifest weight of it.
{¶20} Defendant maintains his convictions fail due to a lack of evidence probative
of his identity as the person who committed these crimes. The evidence includes
videotaped surveillance of the crime in progress. The tape depicts the suspect, what he
was wearing, and items that were in his possession at the time of the offense. Defendant
was arrested a week later with similar items, which the state contended were the same
items used in the dental office break-in, including a hooded sweatshirt, gloves, a
flashlight, and a crowbar. Further, defendant’s booking photo was compared with the
still shot of the person who committed the break-in. There was evidence from which the
jury could reasonably conclude that the state had established defendant as the person who
committed the crimes. Further, defendant’s convictions were supported by the greater
amount of credible evidence in the record such that his convictions were not a manifest
miscarriage of justice.
{¶21} These assignments of error are overruled.
{¶22} In his final assignment of error, defendant argues that he is entitled to a new
trial because the trial court permitted Officer Grams to testify. Defense counsel argued
that the state had not identified Officer Grams as a potential trial witness. There is no
dispute that the state supplied the defense with a copy of Officer Grams’s police report
during discovery. The state also indicated it may call “any and all witnesses contained
in the reports provided during discovery * * *.” The court directed the state to call a
different witness in order to allow the defense time to speak with Officer Grams before
his testimony. Officer Grams testified concerning the events that were detailed in his
police report, which the defense had for quite some time.
{¶23} When a prosecutor violates Crim.R. 16 by failing to provide the name of a
witness, a trial court does not abuse its discretion in allowing the witness to testify where
the record fails to disclose (1) a willful violation of the rule, (2) that foreknowledge
would have benefitted the accused in the preparation of his or her defense, or (3) that the
accused was unfairly prejudiced. State v. Scudder, 71 Ohio St.3d 263, 269, 643 N.E.2d
524 (1994), citing State v. Heinish, 50 Ohio St.3d 231, 553 N.E.2d 1026 (1990), syllabus.
{¶24} Crim.R. 16(L)(1) provides:
The trial court may make orders regulating discovery not inconsistent with
this rule. If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with this rule
or with an order issued pursuant to this rule, the court may order such party
to permit the discovery or inspection, grant a continuance, or prohibit the
party from introducing in evidence the material not disclosed, or it may
make such other order as it deems just under the circumstances.
{¶25} Defendant does not claim that the state willfully omitted Officer Grams’s
name from its witness list, and the state indicated it was inadvertent. Defendant, through
his attorney, had Officer Grams’s report for use in preparing his defense. Defense
counsel was allowed to speak with Officer Grams before the officer testified in court.
Officer Grams’s testimony related to the incident detailed in his police report that had
been provided to defendant. There was no unfair prejudice to defendant related to the
inadvertent omission of Officer Grams’s name from the witness list. The trial court did
not abuse its discretion by allowing his testimony under the circumstances presented in
this case.
{¶26} This assignment of error is overruled.
{¶27} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR