State v. Klein

[Cite as State v. Klein, 2013-Ohio-2387.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-12-09
v.
TAMMY M. KLEIN, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 11-CR-0163
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: June 10, 2013
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
Case No. 14-12-09
ROGERS, J.
{¶1} Defendant-Appellant, Tammy Klein, appeals the judgment of the
Union County Court of Common Pleas finding her guilty of complicity to commit
aggravated robbery, complicity to commit theft, complicity to commit kidnapping,
possession of a controlled substance, tampering with evidence, and sentencing her
to an aggregate prison term of 18 years. On appeal, Klein contends that the
following errors occurred throughout the course of the matter: (1) she received
ineffective assistance of counsel; (2) the verdicts on Counts One through Four
were against the manifest weight of the evidence; (3) the State committed
prosecutorial misconduct during closing argument; (4) the trial court erred when it
did not grant her Crim.R. 29 motion for acquittal at the end of the State’s case-in-
chief; and (5) the trial court erred when it imposed consecutive sentences. Based
on the following, we affirm in part and reverse in part the trial court’s judgment.
{¶2} On March 17, 2010, Dave’s Pharmacy, located at 411 West Fifth
Street in Marysville, was robbed by an armed assailant. The assailant, later
identified as Amanda Freed, stole numerous pills containing oxycodone. Freed
was later arrested for an unrelated offense. While in custody for the unrelated
offense, Freed voluntarily confessed that she robbed Dave’s Pharmacy, and that
Klein, her aunt, was involved in the robbery.
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{¶3} In October 2011, the Union County Grand Jury returned a five count
indictment against Klein, charging her as follows: Count One, complicity to
commit aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the
first degree, with a firearm specification under R.C. 2941.145(A) and a forfeiture
specification under R.C. 2941.1417(A); Count Two, complicity to commit theft of
a dangerous drug in violation of R.C. 2913.02(A)(4), (B)(6), a felony of the fourth
degree, with a firearm specification under R.C. 2941.145(A) and a forfeiture
specification under R.C. 2941.1417(A); Count Three, complicity to commit
kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first degree, with a
firearm specification under R.C. 2941.145(A); Count Four, drug possession in
violation of R.C. 2925.11(A), a felony of the second degree, with a forfeiture
specification under R.C. 2941.1417(A); and Count Five, tampering with evidence
in violation of R.C. 2921.12(A)(1), a felony of the third degree, with a forfeiture
specification under R.C. 2941.1417(A).
{¶4} A jury trial was held in this matter on January 11 and 12, 2012. The
following relevant evidence was adduced during the State’s case-in-chief.
{¶5} According to Freed, she and Klein were together at Klein’s residence
on the morning of March 17, 2010. During that time, she and Klein discussed a
mutual debt they owed to her then-boyfriend, Roscoe, for cocaine that he had
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advanced to them. Freed testified that Klein suggested that they rob Dave’s
Pharmacy and use the proceeds to settle their debt with Roscoe.
{¶6} Freed explained that in preparation for the robbery, Klein showed her
an aerial view of Dave’s Pharmacy and described what the pharmacy looked like
inside. Klein also provided her with clothing and a gun to use during the robbery.
However, Freed recalled that she and Klein agreed to “show [the gun] to scare
somebody, but never to use it.” Trial Tr., Vol. I, p. 97. Freed also testified that
she did not have access to a phone on the day of the robbery.
{¶7} On direct examination, Freed testified that she and Klein were the
only individuals involved in the robbery, and that she and Klein left Klein’s
residence to commit the robbery at approximately 5:00 p.m. During cross-
examination, however, Freed testified that Roscoe was also involved in the
robbery.
{¶8} Freed testified that before she and Klein left Klein’s residence to
commit the robbery, she and Klein both did heroin. When asked whether the
heroin impairs her memory, Freed responded that “[s]ome things but not
something this big. Not - - maybe some little details, but I remember most of what
happened that day.” Trial Tr., Vol. I, p. 112. Freed indicated that Klein drove a
maroon Dodge pickup truck during the robbery. Freed recalled that she and Klein
drove to a residential area located behind the pharmacy. With the assistance of an
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aerial photograph of the area surrounding Dave’s Pharmacy, Freed indicated that
Klein parked the truck in front of a residence located at 426 West Sixth Street. On
direct examination, Freed explained that Klein stayed in the truck, which remained
running, while she proceeded from the truck through an alley and across several
yards to Dave’s Pharmacy. On cross-examination, however, Freed testified that
Roscoe was also in the truck and stayed there during the robbery.
{¶9} Karen Smith, who resides at 426 West Sixth Street in Marysville,
testified that on March 17, 2010, she arrived home sometime between 5:00 p.m.
and 6:00 p.m. Smith explained that upon her arrival she noticed a maroon pickup
truck parked along the street in front of her residence. Smith testified that she had
never seen that truck parked in front of her residence before and thought the
circumstances were unusual. Smith recalled that the truck was running and that
there was one individual sitting in the truck’s driver seat. Smith further recalled
that the individual had a small build and that the individual’s hair was tied up in a
barrette. Given her observations, Smith testified that she believed the individual in
the truck was a female. Though Smith conceded that she did not continually
observe the truck, she indicated that the truck was parked in front of her residence
for approximately 10 minutes, and that she never witnessed anyone climb out of or
into the truck.
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{¶10} Turning back to the robbery, Freed testified that upon entering the
pharmacy she feigned interest in some foot cream. Freed explained that she
requested assistance from one of the pharmacy’s employee’s, Crystal Reisinger.
During her interaction with Reisinger, Freed pulled up her shirt to reveal a gun
tucked in her waistband. Upon displaying the gun, Freed demanded that Reisinger
give her all of the pharmacy’s OxyContin. Reisinger complied with her request
and gave her four bottles containing OxyContin. Immediately thereafter, Freed
fled back to the truck, following the same route she took to the pharmacy.
{¶11} Freed testified that as soon as she left the pharmacy she heard sirens.
Freed climbed into Klein’s truck through the back door and got down on the floor
as Klein drove her to Johnstown, Ohio. Freed explained that during the ride Klein
instructed her to dump the pills into a plastic bag. Also during the ride, they
stopped at a gas station where she discarded the clothes used during the robbery,
the gun, and the empty pill bottles into a dumpster. Freed testified that she and
Klein gave most of the OxyContin to Roscoe, and divided the remainder between
themselves.
{¶12} Reisinger’s recollection of the robbery was very similar to Freed’s
description of what occurred. According to Reisinger, the robbery occurred at
approximately 5:30 p.m. Reisinger recalled that Freed was initially interested in
purchasing foot cream. However, during their conversation, Freed pulled her shirt
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up to reveal a gun tucked in her waistband. Reisinger testified that she was scared
and asked Freed what she wanted. Freed responded that she wanted OxyContin.
Accordingly, Reisinger gathered four bottles containing OxyContin and gave them
to Freed.
{¶13} Several hours after the robbery, David Burke, a pharmacist and the
owner of Dave’s Pharmacy, arrived at the pharmacy. Burke testified that by law
he is required to maintain records of all controlled substances in his pharmacy’s
possession. Burke explained that his pharmacy continually updates the record of
all controlled substances, including oxycodone, which he identified as a schedule
two controlled substance. Burke testified that shortly after arriving at the
pharmacy, he took an inventory of the stolen items. Burke indicated that 130 pills
of 10 milligram OxyContin were stolen, and that the bulk amount of 10 milligram
OxyContin equates to 45 pills.1 Next, Burke indicated that 25 pills of 20
milligram OxyContin were stolen, and that the bulk amount of 20 milligram
OxyContin equates to 23 pills. Finally, Burke indicated that 30 pills of 40
milligram OxyContin were stolen, and that the bulk amount of 40 milligram
OxyContin equates to 12 pills.
{¶14} During the Defendant’s case-in-chief, the following relevant
evidence was adduced.
1
This court has observed that “OxyContin is the trade name for Oxycodone Hydrochloride controlled-
release pills, an opioid analgesic drug.” State v. Ward, 3d Dist. No. 13-11-17, 2012-Ohio-988, fn. 2.
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{¶15} Throughout her testimony, Klein denied any involvement in the
robbery of Dave’s Pharmacy. Klein testified that she routinely filled her
prescriptions at Dave’s Pharmacy, and that Freed was aware of this fact.
According to Klein, she was being prescribed OxyContin at the time of the
robbery. Klein also admitted that she had done heroin with Freed several times,
but denied doing heroin with Freed on March 17, 2010.
{¶16} Klein, her husband, Timothy Klein (“Timothy Sr.”), and her son,
Timothy Klein II (“Timothy Jr.”), each testified that Freed was not at their
residence on March 17, 2010. Instead, each testified that Klein was at home that
day when she received a phone call in the afternoon from Freed. Klein explained
that Freed asked for a ride from the residence of Roscoe’s sister, which, Freed said
was located on West Sixth Street. Klein testified that Freed was not outside when
she arrived at what Freed purported to be the residence of Roscoe’s sister, so she
parked her maroon Dodge pickup truck along West Sixth Street and waited for
Freed to arrive.
{¶17} Klein testified that she waited in her truck for approximately 15
minutes before Freed arrived. Klein explained that Freed jumped in the back seat
of her truck and got down on the floor. According to Klein, Freed indicated that
she was lying on the floor because she had too much to drink. Klein testified that
immediately after Freed climbed into her truck she heard sirens coming from
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behind her vehicle and that she observed several police vehicles driving down
West Sixth Street towards her truck. As a result, Klein did not immediately drive
off after Freed climbed into her truck, but waited for the police vehicles to pass.
According to Klein, the police vehicles never passed her truck, but instead
proceeded to turn off of West Sixth Street. Upon seeing this, Klein drove off
down West Sixth Street.
{¶18} Klein testified that Freed asked to go to a McDonald’s east of
Columbus, Ohio. Shortly after they left Marysville, Freed asked to stop so she
could dump everything she just used to rob Dave’s Pharmacy. According to
Klein, this was the first time she learned of the robbery. Before they pulled over,
Klein witnessed Freed dump the pills into a plastic bag. Then, Klein pulled over
at a gas station off State Route 33, just south of Marysville, where she witnessed
Freed discard several pill bottles, some clothing, and an airsoft gun into a
dumpster. Thereafter, Klein drove Freed to her requested destination, where
Roscoe had been waiting.
{¶19} When Klein was asked why she did not report Freed to authorities,
the following exchange occurred:
Q: After Miss Freed told you what she had done, why didn’t you
just kick her out of your car?
A: Because [State Route] 33 is a lonely place. And she’s got two -
- well, at the time, [a] two and a half year old son * * * .
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Q: Speak up a little bit.
A: I didn’t want to see her go to jail and my - - her son get left
without a mother.
***
Q: Why didn’t you call the police?
A: [Bec]ause she’s my niece.
Q: Didn’t want to see her get in trouble?
A: No. Trial Tr., Vol. II, p. 67-8.
{¶20} In addition to Klein’s testimony about the events surrounding the
robbery, she and her husband also testified about their airsoft guns. Timothy Sr.
testified that they owned several airsoft guns at the time the robbery occurred, and
that the airsoft guns look nearly identical to a real gun. Klein testified that she
initially assumed Freed took one of the airsoft guns from her residence, but
indicated that none of their airsoft guns were missing.
{¶21} After deliberations, the jury found Klein guilty of all five counts and
their attendant specifications.
{¶22} The matter proceeded to sentencing in February 2012. During
sentencing the trial court determined, based on the parties’ agreement, that Counts
One, Two, and Three were allied offenses of similar import and merged Counts
Two and Three into Count One per the State’s request. The trial court then
proceeded to sentence Klein to an eight-year prison term on Count One, a
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mandatory three-year prison term on the firearm specification, a mandatory five-
year prison term on Count Four, and a 24-month prison term on Count Five. The
trial court further ordered each prison term to be served consecutively to one
another for an aggregate prison term of 18 years. In addition, the trial court
ordered Klein to pay Dave’s Pharmacy $480.00 in restitution, as well as all court
costs, costs of prosecution, and a mandatory fine of $7,500.00.2
{¶23} It is from this judgment Klein filed this timely appeal, presenting the
following assignments of error for our review.
Assignment of Error No. I
DEFENDANT-APPELLANT RECEIVED PREJUDICIALLY
INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION
OF HER SIXTH AND FOURTEENTH AMENDMENT
RIGHTS, AS WELL AS HER RIGHTS UNDER SECTION 10,
ARTICLE I, OF THE OHIO CONSTITUTION.
Assignment of Error No. II
THE JURY’S VERDICTS ON COUNTS ONE THROUGH
FOUR ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND MUST BE REVERSED.
Assignment of Error No. III
APPELLEE COMMITED (sic) PROSECUTORIAL
MISCONDUCT IN ITS CLOSING ARGUMENTS WHEN IT
ARGUED ABOUT PERSONAL KNOWLEDGE AND NOT
THE FACTS OF THIS CASE.
2
Despite the jury’s determination that the truck was used in the commission of all five offenses, the State
elected not to pursue forfeiture and the trial court did not order the truck to be forfeited.
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Assignment of Error No. IV
THE TRAIL (sic) COURT ERRED IN NOT GRANTING
APPELLANT’S CRIMINAL RULE 29 MOTION FOR
ACQUITAL AT THE END OF THE STATE’S CASE
BECAUSE THE CONVICTIONS WERE BASED ON THE
UNRELIABLE, UNCORROBORATED TESTIMONY OF THE
ACCOMPLICE WITH NO INDEPENDENT EVIDENCE.
Assignment of Error No. V
THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO CONSECUTIVE SENTENCES.
{¶24} Due to the nature of Klein’s assignments of error, we elect to address
her assignments out of order.
Assignment of Error No. IV
{¶25} In her fourth assignment of error, Klein contends that the trial court
erred when it did not grant her motion for acquittal. Specifically, Klein argues that
there was “too much contradictory testimony to main points in the case that the
matter should have never gone to the jury.” Appellant’s Br., p. 18. We find
Klein’s argument’s unavailing.
{¶26} Crim.R. 29(A) provides that a court must order the entry of a
judgment of acquittal of a charged offense “if the evidence is insufficient to
sustain a conviction of such offense[.]” However, “a court shall not order an entry
of judgment of acquittal if the evidence is such that reasonable minds can reach
different conclusions as to whether each material element of a crime has been
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proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261(1978), syllabus. Thus, a motion for acquittal tests the sufficiency of the evidence.
State v. Tatum, 3d Dist. No. 13-10-18, 2011-Ohio-3005, ¶ 43, citing State v. Miley,
114 Ohio App.3d 738, 742 (4th Dist. 1996).
{¶27} When an appellate court reviews a record for sufficiency, 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. Monroe, 105 Ohio St.3d
384, 2005-Ohio-2282, ¶ 47, citing State v. Jenks, 61 Ohio St.3d 259 (1991),
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89 (1997). Sufficiency is a test of adequacy, State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997), and the question of whether evidence
is sufficient to sustain a verdict is one of law. State v. Robinson, 162 Ohio St. 486(1955), superseded by state constitutional amendment on other grounds as stated
in Smith.
{¶28} In order to preserve the issue of sufficiency on appeal, this court has
held that “[w]hen a defendant moves for acquittal at the close of the state’s
evidence and that motion is denied, the defendant ‘waives any error which might
have occurred in overruling the motion by proceeding to introduce evidence in his
or her defense.’ [State v. Brown, 90 Ohio App.3d 674, 685 (11th Dist. 1993)]. In
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order to preserve a sufficiency of the evidence challenge on appeal once a
defendant elects to present evidence on his behalf, the defendant must renew his
Crim.R. 29 motion at the close of all the evidence.” State v. Edwards, 3d Dist.
No. 9-03-63, 2004-Ohio-4015, ¶ 6.
{¶29} The record reveals that Klein made her Crim.R. 29 motion at the
close of the State’s case-in-chief, and that the trial court denied her motion for
acquittal. Thereafter, Klein proceeded to present evidence in her defense. Klein,
however, did not renew her Crim.R. 29 motion at close of her case-in-chief or at
the conclusion of the all the evidence. Thus, according to this court’s precedent,
Klein has waived all but plain error. State v. Flory, 3d Dist. No. 15-04-18, 2005-
Ohio-2251, citing Edwards.
{¶30} However, “[w]hether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a plain error standard is
academic.” Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-Ohio-4221, ¶ 57
(6th Dist.), quoting State v. Brown, 2d Dist. No. 17891 (July 14, 2000).
Regardless of the standard used, “‘a conviction based on legally insufficient
evidence constitutes a denial of due process,’” and constitutes a manifest injustice.
Thompkins, 78 Ohio St.3d at 386-387, citing Tibbs v. Florida, 457 U.S. 31, 45,
102 S.Ct. 2211 (1982), and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781-14-
Case No. 14-12-09
(1979). Accordingly, we will proceed to determine whether the State presented
sufficient evidence to support Klein’s convictions.
{¶31} For ease of discussion, we will address the offenses associated with
Counts One, Two, and Three together, as they were found to be allied offenses of
similar import, and then discuss the offenses associated with Counts Four and Five
independently of each other.3
Counts One, Two, & Three
{¶32} With respect to Counts One, Two, and Three, Klein was charged
with complicity to commit aggravated robbery in violation of R.C. 2911.01(A)(1),
complicity to commit theft in violation of R.C. 2913.02(A)(4), and complicity to
commit kidnapping in violation of R.C. 2905.01(A)(2). R.C. 2923.03, Ohio’s
complicity statute, provides, in relevant part:
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense[.]
Division (A)(1) of R.C. 2911.01, Ohio’s aggravated robbery statute, provides:
(A) No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing
3
As previously mentioned, each count included a forfeiture specification, seeking forfeiture of the vehicle
Klein allegedly used during the commission of the charged offenses. While the jury found that the vehicle
was used in the commission of each charged offense, the State elected not to pursue forfeiture of the
vehicle and the trial court did not order forfeiture. Since the vehicle was not ordered to be forfeited, there
is no need for this court to determine whether the State presented sufficient evidence to support the jury’s
finding that the vehicle was used in the commission of each charged offense.
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immediately after the attempt or offense, shall do any of the
following:
(1) Have a deadly weapon on or about the offender’s person or
under the offender’s control and either display the weapon, brandish
it, indicate that the offender possesses it, or use it[.]
Division (A)(4) and (B)(6) of R.C. 2913.02, Ohio’s theft statute, provides:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
***
(4) By threat[.]
***
(B)(6) If the property stolen is any dangerous drug, a violation of
this section is theft of drugs, a felony of the fourth degree, or, if the
offender previously has been convicted of a felony drug abuse
offense, a felony of the third degree.4
And, finally, division (A)(2) of R.C. 2905.01, Ohio’s kidnapping statute, provides:
(A) No person, by force, threat, or deception, or, in the case of a
victim under the age of thirteen or mentally incompetent, by any
means, shall remove another from the place where the other person
is found or restrain the liberty of the other person, for any of the
following purposes:
(2) To facilitate the commission of any felony or flight thereafter[.]
Bearing this statutory language in mind, we turn our attention to the evidence
presented at trial.
4
“Dangerous drug,” as used in R.C. 2913.02(B)(6), is defined under R.C. 4729.01(F).
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{¶33} The record reveals that the State presented sufficient evidence to
overcome Klein’s motion for acquittal with respect to Counts One, Two, and
Three. Freed testified that she and Klein planned to rob Dave’s Pharmacy, and
that Klein aided the robbery by providing her with information concerning the
pharmacy’s layout, materials to facilitate the robbery, and transportation to and
from Dave’s Pharmacy. Freed testified that during the robbery she displayed the
butt of a gun tucked in her waistband to a pharmacy employee and demanded
OxyContin, which, as previously mentioned, contains oxycodone. Similarly,
Reisinger testified that the assailant showed her what appeared to be a gun tucked
in her waistband and demanded OxyContin. Reisinger testified that she retrieved
four bottles containing OxyContin and gave them to the assailant, who absconded
with the same. Freed testified that upon receiving the bottles of OxyContin she
fled the pharmacy, located on Fifth Street, and ran to West Sixth Street, where
Klein was waiting in a maroon Dodge pickup truck. Smith, who resided on West
Sixth Street on the day of the robbery, testified that she observed a maroon pickup
truck parked in front of her residence around the time the robbery would have
occurred. Smith testified that the truck was idling and that she observed one
person in the truck, who appeared to be a woman of small stature with her hair tied
up with a barrette. Construing this evidence in a light most favorable to the
prosecution, we find that there was sufficient evidence for a trier of fact to find,
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beyond a reasonable doubt, that the State proved the essential elements of
complicity to commit aggravated robbery, complicity to commit theft, and
complicity to commit kidnapping.
Firearm Specifications for Counts One, Two, & Three
{¶34} With respect to Counts One, Two, and Three, Klein was also charged
with a firearm specification in violation of R.C. 2941.145(A), which provides, in
relevant part:
Imposition of a three-year mandatory prison term upon an offender
under division (B)(1)(a) of section 2929.14 of the Revised Code is
precluded unless the indictment, count in the indictment, or
information charging the offense specifies that the offender had a
firearm on or about the offender’s person or under the offender’s
control while committing the offense and displayed the firearm,
brandished the firearm, indicated that the offender possessed the
firearm, or used it to facilitate the offense.
{¶35} For this specification to apply, the State must present sufficient
evidence that the offender possessed a firearm, which is defined as follows:
“Firearm” means any deadly weapon capable of expelling or
propelling one or more projectiles by the action of an explosive or
combustible propellant. “Firearm” includes an unloaded firearm, and
any firearm that is inoperable but that can readily be rendered
operable. R.C. 2923.11(B)(1).
“When determining whether a firearm is capable of expelling or propelling one or
more projectiles by the action of an explosive or combustible propellant, the trier
of fact may rely upon circumstantial evidence, including, but not limited to, the
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representations and actions of the individual exercising control over the firearm.”
R.C. 2923.11(B)(2).
{¶36} The record reveals that the State presented sufficient evidence to
overcome Klein’s motion for acquittal with respect to the firearm specifications.
Freed repeatedly testified that she used a “gun” during the robbery. E.g., Trial Tr.,
Vol. I, p. 90, 96, 98. While Freed never identified what type of gun it was, she did
testify that she and Klein agreed to “show [the gun] to scare somebody, but never
to use it.” Id. at p. 97. This testimony can reasonably be interpreted to suggest
two things. First, use of the “gun” to scare someone suggests that an individual
would recognize the object as a gun capable of inflicting bodily harm or death.
Indeed, Reisinger testified that she was scared when Freed displayed the gun.
When the State sought to clarify what Reisinger observed in Freed’s waistband,
the following exchange occurred:
Q: When you say she had a gun, what do you mean by a gun?
A: A pistol.
Q: Something that would - - could shoot you?
A: Yes. Id. at p. 134.
Second, the agreement never to use the “gun” can reasonably be interpreted to
suggest operability, as well as a desire to not hurt anyone during the robbery.
Construing this evidence in a light most favorable to the prosecution, we find that
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there was sufficient evidence for a trier of fact to find, beyond a reasonable doubt,
that the State proved that Freed used a firearm while committing the offenses
associated with Counts One, Two, and Three.
{¶37} In so finding, we recognize that there is some dispute as to whether
Freed’s use of the term “gun” throughout her testimony indicates that she
possessed a firearm, pursuant to R.C. 2923.11(B)(1), or whether it was an airsoft
gun.5 Since this dispute involves a weighing of the evidence, we will address this
issue under Klein’s second assignment of error, which asserts that the verdicts on
Counts One through Four were against the manifest weight of the evidence.
Count Four
{¶38} With respect to Count Four, Klein was charged with drug possession
in violation of R.C. 2925.11(A). Specifically, the language of the indictment6
reveals that Klein was charged with violating R.C. 2925.11(A), (C)(1)(c), which
provides:
(A) No person shall knowingly obtain, possess, or use a controlled
substance.
***
5
We note that during closing argument the State arguably concedes that Freed used an airsoft gun during
the robbery. Trial Tr., Vol. II, p. 109-10. However, this argument is not evidence, and therefore we are
precluded from considering it when addressing Klein’s sufficiency and manifest weight assignments of
error. State v. Frazier, 73 Ohio St.3d 323, 338 (1995).
6
With respect to Count Four, the indictment charged Klein as follows: “[On or about March 17, 2010,
Tammy M. Klein,] did knowingly obtain, possess, or use a controlled substance and the drug involved in
the violation is a compound, mixture, preparation, or substance included in Schedule I or II, to wit:
oxycodone, a Schedule II drug, and the amount of the drug involved equals or exceeds five times the bulk
amount but is less than fifty times the bulk amount.” (Docket No. 1, p. 3).
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(C) Whoever violates division (A) of this section is guilty of one of
the following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the
exception of marihuana, cocaine, L.S.D., heroin, and hashish,
whoever violates division (A) of this section is guilty of aggravated
possession of drugs. The penalty for the offense shall be determined
as follows:
***
(c) If the amount of the drug involved equals or exceeds five times
the bulk amount but is less than fifty times the bulk amount,
aggravated possession of drugs is a felony of the second degree, and
the court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree.7
Bearing this statutory language in mind, we turn our attention to the evidence
presented at trial.
{¶39} The record reveals that the State presented sufficient evidence to
overcome Klein’s motion for acquittal with respect to Count Four. Freed testified
that she demanded OxyContin from a pharmacy employee and received four
bottles purportedly containing OxyContin. Similarly, Reisinger testified that she
gave the assailant four bottles of OxyContin.
{¶40} Burke, a pharmacist who owns and operates Dave’s Pharmacy,
testified that the pharmacy is required, by law, to maintain a record of all
controlled substances in its possession, and that record is updated whenever a pill
7
This was the statutory language in effect at the time the offense occurred.
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Case No. 14-12-09
containing a control substance leaves the pharmacy’s control. Burke testified that
he took an inventory of the pills taken during the robbery on the same day the
robbery occurred. Burke testified that 130 pills of 10 milligram OxyContin, which
contains oxycodone, were stolen during the robbery. Burke testified that the bulk
amount of 10 milligram OxyContin equates to 45 pills of the same. Next, Burke
testified that 25 pills of 20 milligram OxyContin, which contains oxycodone, were
stolen during the robbery. Burke testified that the bulk amount of 20 milligram
OxyContin equates to 23 pills of the same. Finally, Burke testified that 30 pills of
40 milligram OxyContin, which contains oxycodone, were stolen during the
robbery. Burke testified that the bulk amount of 40 milligram OxyContin equates
to 12 pills of the same. Added together, an amount of oxycodone exceeding five
times the bulk amount was stolen during the robbery.
{¶41} In addition, Freed testified that she fled the pharmacy and got into a
truck driven by Klein. Freed testified that Klein instructed her to dump the
OxyContin into a plastic bag. Freed further testified that she gave most of the pills
to Roscoe, but that she and Klein divided the remaining pills among themselves.
Construing this evidence in a light most favorable to the prosecution, we find that
there was sufficient evidence for a trier of fact to find, beyond a reasonable doubt,
that the State proved the essential elements of drug possession.
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Count Five
{¶42} With respect to Count Five, Klein was charged with tampering with
evidence in violation of R.C. 2921.12(A)(1), which provides:
(A) No person, knowing that an official proceeding or investigation
is in progress, or is about to be or likely to be instituted, shall do any
of the following:
(1) Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in
such proceeding or investigation[.]
Bearing this statutory language in mind, we turn our attention to the evidence
presented at trial.
{¶43} The record reveals that the State presented sufficient evidence to
overcome Klein’s motion for acquittal with respect to Count Five. Freed testified
that she and Klein discarded the clothes and gun used during the robbery, as well
as the pill bottles, into a gas station dumpster. Though Klein denied taking part in
discarding the items described by Freed, she did testify that she observed Freed
discard clothes, an airsoft gun, and pill bottles into a gas station dumpster. Despite
Klein’s testimony to the contrary, and construing this evidence in a light most
favorable to the prosecution, we find that there was sufficient evidence for a trier
of fact to find, beyond a reasonable doubt, that the State proved the essential
elements of tampering with evidence.
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{¶44} In sum, we find that the State presented sufficient evidence for a trier
of fact to find, beyond a reasonable doubt, that it proved the essential elements of
all the charged offenses and specifications.
{¶45} Accordingly, we overrule Klein’s fourth assignment of error.
Assignment of Error No. II
{¶46} In her second assignment of error, Klein contends that the verdicts on
Counts One through Four were against the manifest weight of the evidence.
Specifically, Klein maintains that Freed’s testimony was replete with
contradictions. In light of these contradictions, Klein asserts that the jury lost its
way when it found Freed’s version of events to be more credible, and
consequently lost its way in finding her guilty on Counts One through Four
because Freed’s testimony was essential in proving the State’s case. In addition,
Klein argues that her finding of guilt with respect to complicity to commit
aggravated robbery was against the manifest weight because the evidence weighed
against a finding that the gun Freed used was a deadly weapon. We find Klein’s
argument’s unavailing.
{¶47} When an appellate court analyzes a conviction under the manifest
weight standard it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
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Case No. 14-12-09
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387,
superseded by constitutional amendment on other grounds as stated by Smith, 80
Ohio St.3d 89, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
Only in exceptional cases, where the evidence “weighs heavily against the
conviction,” should an appellate court overturn the trial court’s judgment. Id.{¶48} We agree that Freed’s testimony was essential in establishing Klein’s
guilt. Aside from Freed’s testimony, much of the evidence heard by the jury
corroborated both Klein’s and Freed’s version of events. As such, the State’s case,
in large part, hinged upon Freed’s credibility.
{¶49} In challenging the jury’s determination concerning Freed’s
credibility, Klein focuses on two instances where Freed allegedly offered
contradictory testimony. The first instance occurred with respect to who was
involved in the robbery. On direct examination, Freed testified that only she and
Klein were involved in the robbery. On cross-examination, however, Freed
testified that Roscoe was also present during the robbery, and was waiting in the
truck with Klein. The second instance occurred with respect to who was supposed
to commit the robbery. Klein notes that throughout her testimony Freed
maintained that she and Klein had planned the robbery together. When asked why
she was selected to rob the pharmacy, Freed responded that she had to fill in for
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“somebody else” because “they hurt themselves.” Trial Tr., Vol. I, p. 112. When
questioned further about who was hurt, Freed responded that it was Klein. Klein
maintains that Freed’s failure to initially identify Klein as the hurt individual
contradicts her testimony that the she and Klein had planned the robbery. Klein
reasons that had the robbery been planned Freed would have initially identified
Klein as the hurt individual, and not “somebody else.”
{¶50} Although Freed did, at times, offer contradictory testimony, we
cannot conclude that the jury lost its way when it found Freed to be more credible.
First, we are not convinced that the contradictions highlighted by Klein render
Freed’s testimony incredible. While Freed did offer contradictory testimony
concerning who was involved in the robbery, she always maintained that the Klein
was involved. As for Klein’s assertion that Freed contradicted her testimony that
the robbery was planned, we are not convinced that Freed contradicted herself. At
trial, the following exchange occurred:
Q: Were you ever given a reason why you should be the one to do
the robbery, i.e., go into Dave’s Pharmacy?
A: Yes. It was supposed to be somebody else, but they hurt
themselves.
Q: So you filled in for somebody else?
A: Yes.
Q: When did it become necessary that you fill in for someone
else?
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A: Pretty much at the last minute.
Q: At the last minute, who was it that got hurt?
A: Tammy.
Q: Tammy Klein, your aunt?
A: Yes. Trial Tr., Vol. I, p. 112.
Considering the following exchange, we fail to see how Freed’s responses
contradict her testimony that she planned the robbery with Klein. While we can
speculate, as Klein has done, why Freed did not initially identify Klein, the first
question did not require Freed to identify the hurt individual. When Freed was
finally asked to identify the hurt individual, she responded that it was Klein.
Given the foregoing exchange and the context in which it occurred, we find that
Freed did not offer testimony that contradicted her repeated assertions that she and
Klein planned the robbery.
{¶51} Aside from the portions of Freed’s testimony identified by Klein as
contradictory, much of Freed’s testimony was consistent. Furthermore, as
previously mentioned, large portions of Freed’s testimony were corroborated by
other witnesses, thus bolstering her credibility. Since the jury was in the best
position to weigh witness credibility, State v. Dickinson, 3d Dist. No. 11-08-08,
2009-Ohio-2099, ¶ 45, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77-27-
Case No. 14-12-09
(1984), we cannot conclude that the jury lost its way when it found Freed’s
testimony to be more credible than Klein’s testimony.
{¶52} Further, we cannot conclude that the jury’s finding concerning
Freed’s use of a deadly weapon was against the manifest weight of the evidence.
Klein maintains that the evidence overwhelmingly demonstrates that the gun Freed
used during the robbery was an airsoft gun, and that the same is not a deadly
weapon pursuant to R.C. 2923.11(A). We, however, are not convinced.
{¶53} The only evidence that Freed used an airsoft gun during the robbery
occurred during Klein’s testimony, wherein she testified that immediately
following the robbery she observed Freed discard an airsoft gun into a dumpster.
This is not overwhelming evidence that Freed used an airsoft gun as opposed to a
gun capable of causing death. Instead, the greater weight of the evidence supports
the jury’s finding that the gun Freed used during the robbery was a deadly
weapon. As previously mentioned, Freed consistently referred to the object
tucked in her waistband as a gun, never an airsoft gun. Although Freed did not
describe the gun, her testimony, particularly her agreement with Klein to never use
the gun, can reasonably be viewed to infer that the gun was both operable and
capable of inflicting bodily harm, if not death. Additionally, Reisinger testified
that she became fearful when she observed the gun tucked in Freed’s waistband.
When asked to describe what the gun looked like Reisinger testified that it looked
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like a “pistol” that could shoot her. Trial Tr., Vol. I, p. 134. When Freed’s and
Reisinger’s testimony is viewed together, it is reasonable to infer that Freed
possessed a gun, or firearm, capable of inflicting death. Consequently, we cannot
conclude that the jury lost its way when it found that Freed used a deadly weapon
during the robbery.
{¶54} Given the foregoing, we find that the jury did not lose its way when
it convicted Klein on Counts One through Four. Freed’s testimony, which the jury
found to be more credible, accounted for much of the evidence necessary to
convict Klein on Count’s One through Four. In particular, Freed’s testimony,
along with Smith’s, Reisinger’s, and Burke’s testimony established that Freed
committed aggravated robbery, theft, kidnapping, and drug possession, and that
Klein was either complicit in or directly committed these offenses. In spite of the
evidence presented in support of Klein’s defense, we are not convinced that the
evidence weighs heavily against Klein’s convictions on Counts One through Four.
Accordingly, we find that the jury’s verdicts on Counts One through Four were not
against the manifest weight of the evidence.
{¶55} Accordingly, we overrule Klein’s second assignment of error.
Assignment of Error No. III
{¶56} In her third assignment of error, Klein contends that prosecutorial
misconduct occurred during the State’s closing argument. Specifically, Klein
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argues that the prosecutor improperly relied on his personal knowledge to suggest
that Klein’s explanation concerning her route from Dave’s Pharmacy to Columbus
was incredible. We find Klein’s argument unavailing.
{¶57} Initially, we note that Klein did not object to the statements she now
alleges to constitute prosecutorial misconduct. Consequently, Klein has waived all
but plain error. State v. White, 82 Ohio St.3d 16, 22 (1998), citing State v. Slagle,
65 Ohio St.3d 597, 604 (1992).
{¶58} In order to have plain error under Crim.R. 52(B), there must be an
error, the error must be an “obvious” defect in the trial proceedings, and the error
must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27
(2002). Plain error is to be used “with the utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice.” Id.Accordingly, plain error exists only in the event that it can be said that “but for the
error, the outcome of the trial would clearly have been otherwise.” State v. Biros,
78 Ohio St.3d 426, 431 (1997).
{¶59} In closing arguments, prosecutors are entitled to some latitude
regarding what the evidence has shown and the inferences that can be drawn.
State v. Ballew, 76 Ohio St.3d 244, 255 (1996). “‘It is improper for an attorney to
express his or her personal belief or opinion as to the credibility of a witness or as
to the guilt of the accused.’” State v. Van Meter, 130 Ohio App.3d 592, 601 (3d
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Case No. 14-12-09
Dist. 1998), quoting State v. Williams, 79 Ohio St.3d 1, 12 (1997). However, “[a]
prosecutor may state his opinion if it is based on the evidence presented at trial.”
State v. Watson, 61 Ohio St.3d 1, 10 (1997) abrogated on other grounds by State v.
McGuire, 80 Ohio St.3d 390 (1997).
{¶60} The test for prosecutorial misconduct during closing argument is
whether the remarks made by the prosecutor were improper and, if so, whether
they prejudicially affected a substantial right of the accused. State v. Siefer, 3d
Dist. No. 5-09-24, 2011-Ohio-1868, ¶ 46, citing White, 82 Ohio St.3d at 22. We
evaluate the allegedly improper statements in the context of the entire trial. State
v. Treesh, 90 Ohio St.3d 460, 464 (2001), citing State v. Keenan, 66 Ohio St.3d
402, 410 (1993). An improper comment does not affect a substantial right of the
accused if it is clear beyond a reasonable doubt that the jury would have found the
defendant guilty even without the improper comments. Id., citing State v. Smith,
14 Ohio St.3d 13, 15, (1984).
{¶61} During its closing argument, the prosecutor addressed Klein’s route
out of Marysville, stating the following:
And then what did she do? And this is her testimony, Tammy M.
Klein. She went to the end of Sixth to Grove Street. She turned
right and she went out onto Fifth. Now, I can tell you, you know.
You live in this town. It’s going towards Krogers, but you can turn
right and come back on Fifth, angle off onto Fourth, and then back
on Maple which is quicker when you’re going where? You’re going
east. You’re going to Columbus. We didn’t go that way. We went
further west. What did we do? We drove further away from the area
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Case No. 14-12-09
that the crime was committed in. Fleeing the area. You will have an
instruction on that. In your jury instructions, it talks about conduct
of leaving the scene, leaving the area. She was the driver. Okay. I
think the excuse I got was it was rush hour traffic. Excuse me. I’ve
lived in the city. I know what rush hour traffic is. Don’t give me - -
you know what goes on in this town. Is it going to slow you down
that much? And realistically, I go down Maple every day. Come
out, jump onto what I consider to be 31, and I go home. I know how
long it takes me to go that way. If it was better for me, what? I
would go clear out past Krogers? It isn’t going to happen cause I’m
going north. But north is further east than going west to where she
went. So think about the conduct of this defendant under those
circumstances. Trial Tr., Vol. II, p. 117-18.
{¶62} Klein argues that the prosecutor’s statement concerning his
knowledge of rush hour traffic in Marysville was improper. We agree. The record
contains no evidence which would permit the prosecutor to comment on his
personal knowledge of rush hour traffic in Marysville. Despite the impropriety of
the prosecutor’s statement, we “must consider the effect of the conduct on the jury
in the context of the entire trial and determine if the remarks actually prejudiced
the substantial rights of the defendant.” State v. Rollison, 3d Dist. No. 9-09-51,
2010-Ohio-2162, ¶ 48; White, 82 Ohio St.3d at 22.
{¶63} The improper statement concerning rush hour traffic in Marysville
was not the only means by which the prosecutor attempted to challenge the
veracity of Klein’s explanation concerning her route from Dave’s Pharmacy to
Columbus. Before improperly discussing rush hour traffic in Marysville, the
prosecutor addressed the details of Klein’s route away from Dave’s Pharmacy.
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Case No. 14-12-09
This segment of the prosecutor’s closing argument was based on evidence
presented at trial, particularly Klein’s own testimony. When viewing this segment
in its entirety, we find that it, like the prosecutor’s improper statement concerning
rush hour traffic, challenges the veracity of Klein’s explanation concerning her
route from Dave’s Pharmacy to Columbus. In particular, it highlights Klein’s
choice to proceed west from Dave’s Pharmacy, when her intended destination,
Columbus, required her to drive southeast. Hence, the prosecutor did
appropriately challenge the veracity of Klein’s explanation concerning her route
from Dave’s Pharmacy to Columbus.
{¶64} In light of the foregoing, and the cursory nature of the improper
statement, we find, beyond a reasonable doubt, that the jury would have found
Klein guilty even without the improper statement.
{¶65} Accordingly, we overrule Klein’s third assignment of error.
Assignment of Error No. I
{¶66} In her first assignment of error, Klein contends that she received
ineffective assistance of counsel. Specifically, Klein argues that trial counsel was
ineffective in two respects. First, trial counsel was ineffective because he did not
attempt to suppress or otherwise object to the introduction of her interview with
law enforcement. Second, trial counsel was ineffective because he did not take
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Case No. 14-12-09
reasonable measures to secure her or Freed’s phone records from the day of the
robbery. We find Klein’s argument’s unavailing.
{¶67} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by
constitutional amendment on other grounds as recognized by Smith, 80 Ohio St.3d
at 103.
{¶68} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance. State v. Malone,
2d Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely
because counsel failed ‘to recognize the factual or legal basis for a claim, or failed
to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray, 477 U.S.
527, 535, 106 S.Ct. 2661 (1986).
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Case No. 14-12-09
Klein’s Videotaped Interview with Law Enforcement
{¶69} First, Klein contends that trial counsel was ineffective because he
made no attempt to prohibit the introduction of her videotaped interview with
Detective McGlenn, or redact those portions of the video which were prejudicial
to her case. Klein asserts that the video was rife with prejudicial information.
Specifically, Klein cites to those portions of the video where she discussed her
prior drug use, where Detective McGlenn stated that she has been under
surveillance in the past, and where Detective McGlenn offered his opinion that she
knew about the robbery before it occurred. Though we agree with certain aspects
of Klein’s argument, we ultimately find her claim of ineffective assistance
unavailing.
{¶70} During the defense’s case-in-chief, Klein testified that she was
interviewed by Detective McGlenn in September 2011, and that her testimony was
consistent with the information she provided Detective McGlenn during the
interview. On cross-examination, the State introduced the video of Klein’s
interview with Detective McGlenn. The State represented that it sought to
introduce the video to demonstrate what it perceived to be inconsistencies between
the information Klein provided Detective McGlenn and her testimony at trial.
Klein’s trial counsel stated that he had no objection to the video, and the same was
played for the jury.
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Case No. 14-12-09
{¶71} The interview lasted approximately 30 minutes. Much of the
interview focused on the robbery, the events surrounding the robbery, and Klein’s
version of events. However, interspersed throughout the interview were several
cursory discussions about Klein’s prior drug abuse. Also, as Klein indicates, there
was one instance where Detective McGlenn stated that Klein had been under
surveillance in the past, and one instance where Detective McGlenn offered his
opinion that Klein knew about the robbery before it occurred.
{¶72} After the video was played for the jury, the trial court immediately
administered the following limiting instruction to the jury.
Ladies and gentlemen, before we go any further, the Court has a
commentary that I need you to observe with regard - - an instruction
that I need you to observe with regard to the videotape that you just
watched. The videotape that you just watched included the
defendant’s admission and Detective McGlenn’s discussion in
addition to the admission of other acts committed by the defendant.
Other acts, evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action
and conformity therewith. So you can’t use these other acts that
she’s talked about. And you can’t consider those other acts when
you’re determining whether or not she’s guilty or not guilty of the
crimes that she’s charged with when you go into your deliberations.
This is called - - what this is called that I’m giving you is a limiting
instruction so that you’ve got this in your mind. The other acts may
be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. But they’re not admissible to prove
the character of the defendant in this case in order to show action
and conformity therewith. In other words, you can’t say because she
was using heroin or because she said that she sold pills in the past,
that therefore she did the acts there (sic) are in question. Everybody
understand that? So you can’t consider the other acts that were
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Case No. 14-12-09
talked about for that purpose. You have to - - you have to look at the
evidence that was brought before the Court in this case alone as to
whether - - and decide whether or not she’s guilty or not guilty of the
acts that were committed, or that acts there (sic) are alleged, I’m
sorry, that she committed. So these other acts things, highly
prejudicial in terms of being in your mind. Well, she used heroin so
she must have done this. You can’t make that conclusion. You
can’t make that jump. Do you all understand that? Thank you.
Trial Tr., Vol. II, p. 74-76.
{¶73} Generally, a claim for ineffective assistance of counsel will not
succeed if the evidence at issue is admissible. See State v. May, 3d Dist. No. 8-11-
19, 2012-Ohio-5128, ¶ 92, (finding no ineffective assistance of counsel where the
trial counsel did not object to admissible evidence); see also State v. Dubose, 7th
Dist. No. 00-C.A.-60, 2002-Ohio-6613, ¶ 12-13 (same). Here, a majority of the
video was admissible, since it contained information relevant to the charged
offenses, and demonstrated, as the State represented, inconsistencies between the
information Klein provided Detective McGlenn and her testimony at trial.
Accordingly, we find that trial counsel was not ineffective when he failed to object
to the entire video being admitted into evidence.
{¶74} Trial counsel’s performance presents a closer call with respect to
Klein’s argument that he should have made some effort to redact those portions of
the video which she claims were prejudicial. Contrary to Klein’s assertions on
appeal, we find that trial counsel’s performance did not fall below objective
standards of reasonable representation when he failed to object to those portions of
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Case No. 14-12-09
the video wherein Klein discussed her prior drug abuse and Detective McGlenn
stated his opinion that she knew about the robbery before it occurred. As for
Klein’s discussion of her prior drug abuse, evidence of the same was introduced
during Freed’s and Klein’s testimony. As such, we cannot conclude that trial
counsel was ineffective when he made no attempt to redact those portions of the
video in which Klein discussed her prior drug abuse. Similarly, we cannot
conclude that trial counsel was ineffective when he made no attempt to redact
Detective McGlenn’s opinion. Though it may have been prudent to redact that
portion of the video, Detective McGlenn clearly stated that the opinion was his
alone and that he could be wrong. Given these qualifying remarks and the overall
context of the interview, we are not convinced that trial counsel’s failure to redact
that portion fell below objective standards of reasonable representation.
{¶75} As for Detective McGlenn’s statement that Klein had been under
surveillance in the past, we agree that trial counsel should have attempted to redact
that portion and that failure to do so fell below objective standards of reasonable
representation. Detective McGlenn’s statement concerning his surveillance of
Klein had no relevance to the charged offenses and was prejudicial, as it suggested
that Klein has long had a propensity to commit crimes or associate with others
who commit crimes.
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Case No. 14-12-09
{¶76} Despite the foregoing, and considering the totality of the
circumstances, we are not convinced that, but for trial counsel’s error, the outcome
at trial would have been different. The trial court gave a detailed limiting
instruction immediately after the video was played, which we must presume the
jury followed. Pang v. Minch, 53 Ohio St.3d 186, 195 (1990). We find that the
limiting instruction sufficiently mitigated any probability that Klein was
prejudiced by the playing and subsequent introduction of the entire video of her
interview with Detective McGlenn.
{¶77} Klein cites to State v. Main, 5th Dist. No. 9562 (Aug. 22, 1994), in
support of her contention that trial counsel was ineffective when he did not
attempt to suppress or otherwise object to the introduction of her interview with
Detective McGlenn. However, a review of Main reveals that it is inapposite to
this matter. In Main, the defendant challenged the admission of his tape recorded
interview with law enforcement. The reviewing court described the interview as
follows:
The tape is not a statement by Appellant per se, but rather is a
dialogue between officers and Appellant in which the officers accuse
Appellant of lying to them, of striking Kimberly George, and
otherwise advance various investigative theories of their own. The
tape also contains a certain amount of discussion regarding whether
or not Appellant will take a polygraph test to convince the officers of
his innocence. (Emphasis sic.) Id.-39-
Case No. 14-12-09
Upon comparison, we find that the tape recorded interview in Main and Klein’s
interview are manifestly different. Unlike the interview in Main, much of Klein’s
interview focused on her version of events surrounding the robbery. At no point
during Klein’s interview did it appear that Detective McGlenn was employing the
brash and manipulative tactics that appeared to be pervasive throughout the
interview in Main. Given these manifest differences, we decline to follow Main in
this case.
{¶78} Klein also relies on State v. Bankston, 2d Dist. No. 24192, 2011-
Ohio-6486. However, a review of Bankston reveals that it too is inapposite to this
matter. In Bankston, the defendant, who was charged with domestic violence,
challenged the admission of two conversations that were recorded while he was in
jail awaiting trial. The reviewing court determined that it was error for both
recorded conversations to be played in their entirety during trial. In so finding, the
court stated that only a brief portion of each conversation was necessary to
demonstrate the inconsistencies the state alleged to exist, and that the remaining
content was either irrelevant or prejudicial. The court also noted that more of the
conversations could have been played for the jury if it was needed for “context or
completeness,” but concluded that such a need was not present under the
circumstances of the matter. Bankston at ¶ 13. Unlike the conversations in
Bankston, much of Klein’s interview was not filled with prejudicial or irrelevant
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Case No. 14-12-09
information, but rather information that was otherwise admissible. While playing
Klein’s interview in its entirety was in some respects cumulative, it was acceptable
since it gave context to Klein’s inconsistent statements which were scattered
throughout the video. Given these manifest differences, we decline to follow
Bankston in this case.
{¶79} In sum, we find that trial counsel was not ineffective when he did not
attempt to suppress or otherwise object to the introduction of her interview with
Detective McGlenn.
Phone Records
{¶80} Next, Klein contends that trial counsel was ineffective when he failed
to obtain either her or Freed’s phone records from the day of the robbery. Klein
argues that the phone records were essential to proving her case, as they would
have corroborated her version of events and impeached Freed’s testimony that she
did not have a phone on her person at the time of the robbery. We find Klein’s
argument unavailing.
{¶81} During trial, Detective McGlenn was questioned about the phone
records, resulting in the following exchange:
Q: After you interviewed Miss Klein and she indicated that she
had received this phone call, did you happen to look at her phone
records or Miss Freed’s phone records to see if that actually
occurred?
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Case No. 14-12-09
A: This - - this information came about 18 months after the fact
and when we attempted to get the phone records, there was an issue
with the time of being able to get those records.
Q: So you weren’t able to look - -
A: I was not able to obtain those records. Trial Tr., Vol. II, p. 20.
Similarly, Timothy Sr. testified that, at the behest of trial counsel, he attempted to
secure the phone records a couple of weeks before trial, but explained that “[he]
couldn’t.” Id. at p. 56.
{¶82} As the record stands, we cannot conclude that trial counsel was
ineffective. According to Detective McGlenn, he attempted, but was unable, to
obtain the phone records during his investigation in September 2011. Likewise,
Timothy Sr. was unable to obtain the phone records. In light of this evidence, we
can only conclude that the phone records were unavailable, and consequently any
effort by trial counsel to obtain the phone records would have been unsuccessful.
Accordingly, we cannot conclude that trial counsel was ineffective when he failed
to obtain the phone records from the day of the robbery.
{¶83} In sum, we find that trial counsel was not ineffective when he failed
to challenge the introduction of the video depicting Klein’s interview with
Detective McGlenn, or when he failed to obtain Klein’s or Freed’s phone records
from the day of the robbery.
{¶84} Accordingly, we overrule Klein’s first assignment of error.
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Assignment of Error No. V
{¶85} In her fifth assignment of error, Klein contends that the trial court
erred when it sentenced her to consecutive sentences. We find Klein’s argument
unavailing.
{¶86} A reviewing court must conduct a meaningful review of the trial
court’s imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8. Such review allows the court to “modify or vacate the sentence
and remand the matter to the trial court for re-sentencing if the court clearly and
convincingly finds that the record does not support the sentence or that the
sentence is otherwise contrary to law.” Id. Clear and convincing evidence is that
“which will produce in the mind of the trier of facts a firm belief or conviction as
to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus. An appellate court should not, however, substitute
its judgment for that of the trial court because the trial court is “‘clearly in the
better position to judge the defendant’s likelihood of recidivism and to ascertain
the effect of the crimes on the victims.’” State v. Watkins, 3d Dist. No. 2-04-08,
2004-Ohio-4809, ¶ 16.
{¶87} Where consecutive sentences are not mandated by statute, the trial
court must consider R.C. 2929.14(C)(4) before it can order sentences to be served
consecutively. R.C. 2929.14(C)(4) provides:
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(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and if the court also
finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that
no single prison term for any of the offenses committed as part of
any of the courses of conduct adequately reflects the seriousness of
the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
While the trial court is required to make specific findings before imposing
consecutive sentences pursuant to R.C. 2929.14(C)(4), State v. Hites, 3d Dist. No.
6-11-07, 2012-Ohio-1892, ¶ 11, it is not required to give its reasons for imposing
consecutive sentences. State v. McKenzie, 3d Dist. No. 15-12-07, 2012-Ohio-
6117, ¶ 10, citing State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746, ¶
57.
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{¶88} Upon review, we find that the trial court made the requisite findings
under R.C. 2929.14(C)(4). At the sentencing hearing, the trial court stated that it
considered, among other things, “the record, the oral statements, [and] the
presentence investigation * * * [.]” Sentencing Hearing Tr., p. 21. Thereafter, the
court stated the following regarding the imposition of consecutive sentences.
The Court further finds that consecutive sentences are necessary to
protect the public from future crime and to punish the defendant.
And further, that consecutive sentences are not just disproportionate
to the seriousness of the defendant’s conduct and to the danger that
the defendant poses to the public. The Court further finds at least
two of the multiple offenses that were committed, were committed
as part of one or more causes - - courses of conduct. And that the
harm caused by two or more of the multiple offenses so committed
was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of your conduct. Id.The same findings were included in the trial court’s judgment entry of sentencing.
Given the trial court’s consideration of the record, oral statements, presentence
investigation, its findings under R.C. 2929.14(C)(4), and our independent review
of the record, we find that the trial court’s imposition of consecutive sentences was
not clearly and convincing unsupported by the record or contrary to law.
{¶89} Accordingly, we overrule Klein’s fifth assignment of error.
{¶90} In addition to Klein’s assignments of error, we, sua sponte, address
plain error with respect to the verdict form for Count Two, complicity to commit
theft. Since Klein did not object to the verdict form for Count Two, she has
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forfeited all but plain error. State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-
2224, ¶ 11.
{¶91} R.C. 2945.75 provides, in relevant part:
(A) When the presence of one or more additional elements makes
an offense one of more serious degree:
***
(2) A guilty verdict shall state either the degree of the offense of
which the offender is found guilty, or that such additional element or
elements are present. Otherwise, a guilty verdict constitutes a finding
of guilty of the least degree of the offense charged.
{¶92} In its first decision addressing the effect of not complying with R.C.
2945.75(A)(2), the Ohio Supreme Court held that “that pursuant to the clear
language of R.C. 2945.75, a verdict form signed by a jury must include either the
degree of the offense of which the defendant is convicted or a statement that an
aggravating element has been found to justify convicting a defendant of a greater
degree of a criminal offense.” State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-
256, ¶ 14. The court reasoned that “[t]he express requirement of [R.C. 2945.75]
cannot be fulfilled by demonstrating additional circumstances, such as that the
verdict incorporates the language of the indictment, or by presenting evidence to
show the presence of the aggravated element at trial or the incorporation of the
indictment into the verdict form, or by showing that the defendant failed to raise
the issue of the inadequacy of the verdict form.” Id.-46-
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{¶93} In a more recent decision, the court, faced with a similar issue,
appeared to change its position on the effect of not complying with R.C.
2945.75(A)(2). Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224. Applying a plain
error standard of review, the majority, looking at the totality of the record, in
particular the indictment, the evidence presented at trial, and the jury instructions
determined that the failure to include either the degree of the offense or a finding
concerning the aggravating element in the verdict form did not constitute plain
error. Id. at ¶ 18. The majority reasoned that even if the trial court complied with
R.C. 2945.75(A)(2) the outcome of the trial would not have been different. Id.
{¶94} Although the court’s decisions in Pelfrey and Eafford apparently
contradict each other, the Eafford Court did not expressly overrule Pelfrey. As
such, this court has recently determined that “in light of Eafford’s silence and our
strict interpretation of R.C. 2945.75(A)(2) as required by R.C. 2901.04(A) and
Pelfrey, we find that Pelfrey controls” in cases where the verdict form is
insufficient under R.C. 2945.75(A)(2). State v. Gregory, 3d Dist. No. 16-12-02,
2013-Ohio-853, ¶ 18.
{¶95} As previously mentioned, Klein was charged with complicity to
commit theft of a dangerous drug in violation of R.C. 2913.02(A)(4), (B)(6), a
felony of the fourth degree. For a theft offense to constitute a fourth degree felony
under R.C. 2913.02(B)(6), the jury must make an additional finding that “the
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property stolen is any dangerous drug[.]” Without this finding, the defendant’s
theft offense constitutes a first degree misdemeanor.8 R.C. 2913.02(B)(2).
{¶96} While the trial court properly instructed the jury that it had to find
that the stolen property was a dangerous drug in order to convict Klein of a fourth
degree felony theft offense, this fact, under Pelfrey, does not excuse the failure to
comply with R.C. 2945.75(A)(2). Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,
at ¶ 14. The verdict form here reads:
We, the jury, being duly impaneled and sworn, find the Defendant,
Tammy M. Klein guilty of the charge of Theft in violation of Ohio
Revised Code Section 2913.02(A)(4). (Docket No. 47).
Clearly, the verdict form does not include either the degree of the offense (i.e., a
fourth degree felony) or the aggravating element (i.e., that the property stolen was
a dangerous drug), as required by R.C. 2945.75(A)(2). Under Pelfrey, the verdict
form is insufficient to convict Klein of a fourth degree felony, and we
consequently find the failure to comply with R.C. 2945.75(A)(2) results in plain
error. See Gregory, 2013-Ohio-853, ¶ 21 (finding plain error where verdict form
did not contain degree of offense or a finding concerning the aggravating
element).
{¶97} Having found no error prejudicial to Klein, in the particulars
assigned and argued, but having found plain error with respect to the verdict form
8
Based on the evidence at trial, the value of the stolen OxyContin was $480.00. Accordingly, at the time
the offense occurred, Klein would have been guilty of petty theft, a misdemeanor of the first degree. R.C.
2913.02(B)(2).
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for Count Two, we affirm in part, and reverse in part, and remand the matter for
the trial court to enter a judgment convicting Klein of complicity to commit theft
as a first degree misdemeanor, pursuant to R.C. 2913.02(A)(4), (B)(2).
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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