State v. Young

[Cite as State v. Young, 2013-Ohio-3418.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA14
:
vs. :
: DECISION AND JUDGMENT
GLENN F. YOUNG, JR., : ENTRY
:
Defendant-Appellant. : Released: 07/26/13
_____________________________________________________________
APPEARANCES:
David A. Sams, West Jefferson, Ohio, for Appellant.
James E. Schneider, Washington County Prosecutor, and Alison L.
Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Glenn F. Young, Jr., appeals his conviction in the Washington
County Court of Common Pleas after a jury found him guilty of one count of
theft of a dangerous drug, a violation of R.C. 2913.02(A)(1)(2)(3) and (B)
(1)(6). On appeal, Young contends (1) the trial court erred by admitting
hearsay; (2) the trial court erred in admitting Appellant’s statements in the
absence of a corpus delicti; (3) the judgment is based upon insufficient
evidence and is otherwise against the manifest weight of the evidence; and,
(4) Appellant was denied effective assistance of counsel.
Washington App. No. 12CA14 2
Upon review, we find the trial court’s admission of Carrie Roush’s alleged
hearsay statement was not error. Here there was sufficient evidence to
establish the corpus delicti of the crime in this matter and, as such, the trial
court did not err in subsequently admitting Appellant’s tape-recorded
confession. We also find the jury’s verdict was based on sufficient evidence
and was also not against the manifest weight of the evidence. Finally, we
find Appellant was not denied effective assistance of counsel. Accordingly,
we overrule all assignments of error and affirm the judgment of the trial
court.
FACTS
{¶2} Glenn F. Young, Jr., was indicted for theft of a dangerous drug,
a violation of R.C. 2913.02(A)(1))(2)(3) and (B)(1)(6) by the Washington
County Grand Jury on April 29, 2011. The indictment specifically alleged
theft of 25 pills containing Hydrocodone and approximately 10
Cyclobenzaprine pills. Appellant’s mother, Clara M. Young, was the alleged
victim of this crime. Appellant proceeded to a jury trial on January 18, 2012.
{¶3} At trial, the State presented testimony from Carrie Roush,
Appellant’s sister. She testified her mother lived in an apartment in Beverly,
Ohio in early 2011. Ms. Roush testified her mother had just returned to her
apartment after being away for a month after knee replacement surgery in
Washington App. No. 12CA14 3
late January 2011. Ms. Young had been in a nursing home three weeks. Ms.
Roush assisted her mother in obtaining her medication, a pain medication, a
muscle relaxant, and her regular medications, from the B&W Pharmacy on
or about February 18, 2011. Ms. Young then stayed with her daughter a
week after obtaining the prescriptions on the 18th. Ms. Roush testified
during that time, her mother resisted taking her Vicodin as much as possible.
At the time Ms. Young returned to her apartment in the latter part of
February 2011, she still had nearly the entire prescription of pain
medication, a 60- day supply. On the Sunday or Monday following Ms.
Young’s return to her apartment, Carrie Roush received a phone call from
her mother that “some of her pills were missing.” Ms. Roush testified she
then went to her mother’s apartment, counted her pills, and noticed
approximately half of the pills were missing. She advised contacting the
police. Carrie Roush further testified to her knowledge, the only people
present at her mother’s apartment during the relevant time period, (the
Friday her mother returned to her apartment until the Sunday or Monday Ms.
Roush assisted her mother in counting the pills), were her brother, Appellant
Glenn F. Young, Jr., and his ex-wife Aimee Young.
{¶4} On cross-examination, Carrie Roush testified she did not
actually see Appellant take the pills. Ms. Roush also testified her mother had
Washington App. No. 12CA14 4
anxiety attacks when her children were in a fight or her grandchildren were
“back-talking.” Ms. Roush acknowledged her mother’s memory was
questionable, and there had been other instances of her making accusations
against Appellant. Ms. Roush testified her brother’s personality was to
“fight back” against an accusation. On redirect, Ms. Roush testified the
missing pills were never found. 1
{¶5} Clara M. Young did not testify at trial. The State played a brief
recorded telephone conversation between Appellant and his mother dated
March 3, 2011. Prior to introducing the recorded statement, defense counsel
objected on the basis that (1) there had not been enough evidence established
at trial to establish a corpus delicti, and, (2) Ms. Young’s statement was
testimonial hearsay which a limiting instruction would not cure. The trial
court ruled there was sufficient evidence to establish a corpus delicti. The
trial court also ruled the recording would be admissible with a limiting
instruction that Ms. Young’s statements were admissible only to give
context to the statements made by the defendant. The relevant portion of the
transcript of the recorded statement is as follows:
{¶6} Glenn Young, Jr.: I got your messages this morning.
1
Ms. Roush referenced “pain medication” and “pills” in her testimony. She never used the terms
“Vicodin” or “Hydrocodone.” She responded to questions from the prosecuting attorney regarding
“Vicodin.” Ms. Roush’s only testimony regarding cyclobenzaprine referenced in the indictment was that
she “picked up her mother’s medications,” which included a “muscle relaxant.”
Washington App. No. 12CA14 5
Clara Young: Yea, I was just kinda wondering why you had to
2
take those pain pills Bud.
Glenn Young, Jr.; Huh?
Clara Young: I’m wondering why you got in there and took my
pain pills.
Glenn Young, Jr.: I only took 5 of them.
Clara Young: (Unintelligible) you took more than 5, because I
only used 5 of them and there are 30 left and that means you took 25.
Glenn Young, Jr.: No I didn’t.
Clara Young: Glenn Young Jr., there’s nobody else in this world
been in my house, since I brought them pills from Sis’s.
Glenn Young, Jr.: I’ll get them and bring them back to you.
Clara Young: Huh?
Glenn Young, Jr.: I’ll buy some and bring them back to ya.
Clara Young; I don’t want you to buy some. I want to know why
you took them?
Glenn Young Jr.: Because I needed them. You never gave them to
me when I asked.
Clara Young: Well maybe if you would have asked I would have
gave you one, but you didn’t need to steal from me.
Glenn Young Jr.: Well what (unintelligible)
Clara Young: And the same thing with the Flexural (sic).
Glenn Young Jr.: Yea, Well (sic), I didn’t take the Flexural (sic).
2
Appellant’s nickname is “Bud” or “Buddy.” He testified Carrie Roush’s nickname is “Sissy.”
Washington App. No. 12CA14 6
Clara Young: O.k. So, why did you take the pain medicine?
Glenn Young Jr.: Because I needed them.
Clara Young: Like I said nobody has been in this apartment but
you, so I knew it had to be you.
Glenn Young Jr.: I know who it is, I will bring them back to you.
{¶7} The final State’s witness was Patrolman Larry Freed. Patrolman
Freed testified he made contact with Clara Young on March 3, 2011, as part
of his duties with the Beverly Police Department. He had been advised by
Chief Sams that pills had been stolen from her residence. He went to Clara
Young’s apartment to assist her in recording a phone conversation with her
son. He did not tell Ms. Young what to say during the conversation. He
testified he provided a complete copy of the conversation to the prosecuting
attorney’s office and to Chief Sams, who was investigating the complaint.
He testified nothing was edited or removed from the conversation. At this
point in the trial, the State offered the tape into evidence. Defense counsel
renewed his objection to the tape and requested a limiting instruction. The
limiting instruction was as follows:
Ladies and gentleman, you listened to a tape, or at least a
recording of an alleged conversation between Clara Young and
Glenn Young, Jr. Clara Young’s statements on the CD are not
offered for the truth of those statements—that is, they’re not
offered to prove the assertions made by Mrs. Young, in that
tape. They are admissible only to provide context for Mr.
Washington App. No. 12CA14 7
Young’s replies. So, the information that—that she provided,
accusations that she made, statements that she made, are not
evidence of those and you are to disregard them as such. The
only reason you heard them, was so that you would have the
context in which to understand the statements allegedly made
by Mr. Young.
{¶8} On cross-examination, Patrolman Freed testified he never
looked at the pill bottle, checked for fingerprints on the bottle, or took
photos of the bottle. He testified it was Chief Sams’ suggestion to record a
phone conversation and try to get Appellant to admit guilt.
{¶9} At this point in trial, counsel for the parties stipulated that Clara
Young’s medication contained Hydrocodone, a dangerous drug as defined in
R.C. 4729.02. 3 The State offered the tape-recorded conversation as Exhibit
A, and the transcript of the recorded conversation as Exhibit B, into
evidence. The exhibits were admitted and the State rested. Defense counsel
made a Crim.Rule 29 motion for acquittal based on insufficient evidence.
The motion was denied.
{¶10} The defense first called Aimee Young (“Aimee”), Appellant’s
ex-wife, with whom he continued to have a close relationship. In early
2011, Appellant and Aimee were living in a camper in Meigs County, Ohio.
Aimee testified she worked at a gas station, Appellant was unemployed, and
3
We note R.C. 4729.02 is entitled “State Board of Pharmacy.” We presume the stipulation should have
cited 4729.01 entitled “Pharmacists, dangerous drugs definitions.”
Washington App. No. 12CA14 8
finances were “difficult.” Appellant’s mother invited them to stay so they
went to her apartment on or about February 26, 2011. Aimee was unaware
of Ms. Young’s recent surgery or that Ms. Young had medications. Aimee
also testified Appellant’s mother had made other accusations against him in
the past.
{¶11} On cross-examination, Aimee acknowledged Appellant and she
moved to Ravenswood, West Virginia after the allegations of theft surfaced
but returned to Ms. Young’s apartment 2-3 weeks prior to the trial. Aimee
testified Ms. Young was emotional, crying and upset at the thought of
having to testify against her son. Aimee also testified Appellant admitted to
taking 5 pills because did not want to argue with his mother and was simply
trying to appease her.
{¶12} The next defense witness was Chief of Police Mark Sams of
the Beverly Police Department. Chief Sams testified Patrolman Freed was
no longer with the department. Chief Sams testified he took the initial report
and spoke with the victim on a couple of occasions. He also talked to Carrie
Roush. Chief Sams testified he did not photograph or collect finger prints of
the pill bottle. He did not collect the bottle or count the pills. Chief Sams
verified it was his idea to have the victim contact Appellant and record the
conversation. On cross-examination, Chief Sams testified he never saw
Washington App. No. 12CA14 9
evidence of Ms. Young’s alleged mental infirmities. He acknowledged she
was upset and angry when they spoke. He testified he saw the victim and
her daughter counting the pills and was satisfied that pills were missing.
{¶13} Appellant was the final witness. He testified his father passed
away in 2002. Appellant testified he knew his mother was in a nursing
home and at his sister’s house after the knee surgery. Appellant
corroborated the previous testimony about his mother’s tendency to make
accusations against him.4
{¶14} Appellant gave testimony explaining the tape-recorded
conversation with his mother. He testified he was lying when he told her he
took five pills to “smooth things over.” He testified that if he had denied the
accusation, it would have been an “all-out brawl,” and his mother may have
“gone to her grave mad” at him. Appellant testified he was tired of fighting
and arguing with his only surviving parent. He testified he was staying with
his mother at the time of trial in an effort to make amends.
{¶15} The jury subsequently found Appellant guilty. He was
sentenced on February 29, 2012. This timely appeal followed.
4
The substance of the accusations referenced by Carrie Roush , Aimee Young, and Appellant was that
Appellant had been accused of hurting his mother’s bird and stealing gas cards. There was also testimony
about a missing food stamp card, misplaced insurance card, and misplaced cell phone.
Washington App. No. 12CA14 10
ASSIGNMENTS OF ERROR
I. THE DEFENDANT-APPELLANT WAS DENIED A FAIR
TRIAL BY THE ADMISSION OF INADMISSIBLE
HEARSAY CONTRARY TO OHIO LAW AND THE STATE
AND FEDERAL CONSTITUTIONS.
II. THE TRIAL COURT ERRED IN ADMITTING THE
STATEMENTS OF THE DEFENDANT-APPELLANT IN
THE ABSENCE OF A CORPUS DELICTI.
III. THE JUDGMENT IS BASED UPON INSUFFICIENT
EVIDENCE AND IS OTHERWISE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE CONTRARY TO
OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.
IV. THE DEFENDANT-APPELLANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO
THE STATE AND FEDERAL CONSTITUTIONS.
ASSIGNMENT OF ERROR ONE
{¶16} Appellant contends he was denied a fair trial by the
admission of inadmissible hearsay contrary to Ohio law and the State and
Federal Constitutions. Specifically, Appellant argues Carrie Roush’s
statement “I got a phone call from my mom that some of her pills were
missing” should not have been admitted. At trial, Clara M. Young did not
testify. She was an unavailable declarant and defense counsel had no
opportunity to cross-examine her regarding her out-of-court statement to her
daughter. These facts suggest the statement is hearsay. Appellee argues the
statement falls into one of the recognized exceptions to the hearsay rules.
Washington App. No. 12CA14 11
Appellee counters the statement was offered to explain the personal
knowledge and subsequent actions of Carrie Roush. Appellant failed to
object to introduction of the statement at trial. Therefore, we review the
alleged error under the standard set forth regarding plain errors.
A. STANDARD OF REVIEW
{¶17} Failure to object to an alleged error waives all but plain
error. State v. Keeley, 4th Dist. No. 11CA5, 2012-Ohio-3564, 2012 WL
3194355, ¶ 28. Notice of CrimR. 52(B) plain error must be taken with the
utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice. State v. Rohrbaugh, 126 Ohio St.3d 421,
934 N.E.2d 920, 2010-Ohio-3286, at ¶ 6; State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), at paragraph three of the syllabus. To find plain
error, the outcome of trial clearly would have been otherwise. State v.
McCausland, 124 Ohio St.3d 8, 918 N.E.2d 507, 2009-Ohio-5933, at ¶ 15;
State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d 439, 2003-Ohio-1325, at ¶
50.
{¶18} “The admission or exclusion of relevant evidence rests within
the sound discretion of the trial court[.]” State v. Haines, 112 Ohio St.3d
393, 2006-Ohio-6711, 860 N.E.2d 91, at ¶ 50, citing State v. Robb, 88 Ohio
St.3d 59, 68, 2000-Ohio-275, 723 N.E.2d 1019. An abuse of discretion
Washington App. No. 12CA14 12
connotes more than an error of judgment; it implies that the trial court’s
attitude was arbitrary, unreasonable, or unconscionable. Blakemore v.
Blakmore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶19} Evid.R. 801(C) defines “hearsay” as “a statement, other than
one made by the declarant while testifying at trial or hearing, offered in
evidence to prove the truth of the matter asserted.” A witness is barred from
testifying as to the statements made by another only when the statement is
offered to prove the truth of the matter asserted in the statement, and only
where the statement falls outside of any exceptions to the rule against
hearsay as set forth in Evid.R. 803 and 804. See State v. Davis, 62 Ohio St.
3d 326, 344, 581 N.E.2d 1362 (1991). Evid.R. 802 contains the general
prohibition against the admission of hearsay and provides: “Hearsay is not
admissible except as otherwise provided by the Constitution of the United
States, by the Constitution of the State of Ohio, by statute enacted by the
General Assembly not in conflict with a rule of the Supreme Court of Ohio,
by these rules, or by other rules prescribed by the Supreme Court of Ohio.”
{¶20} An out-of-court-statement offered to show why a witness acted
in a particular manner is not hearsay. State v. Maurer, 15 Ohio St.3d 239,
262-263, 473 N.E.2d 768 (1984); see, also, State v. Messer, 107 Ohio
App.3d 51, 57, 667 N.E.2d 1022(1994). A trial court has broad discretion to
Washington App. No. 12CA14 13
determine whether a declaration should be admissible under the various
exceptions to the hearsay rule. State v. Rohdes, 23 Ohio St.3d 225, 229, 492
N.E.2d 430 (1986), disapproved on other grounds by State v. Kidder, 32
Ohio St.3d 279, 513 N.E.2d 311 (1987).
B. LEGAL ANALYSIS
{¶21} In this matter, Carrie Roush testified she picked up her
mother’s prescription for pain medication on February 18th. Her mother,
who then stayed with her a week, resisted taking her Vicodin and had nearly
an entire 60-day supply with her when she returned to her apartment the
following week. This testimony constitutes personal knowledge of her
mother’s ownership of the pills and the number of pills in her prescriptions.
Thus, Ms. Roush’s statement “I received a phone call from my mom that
some of her pills were missing” assisted in explaining the context of Ms.
Roush’s subsequent observations and behavior of going to her mother’s
home, counting the pills, and urging her mother to call the police. This type
of out-of-court statement is similar to that in State v. Spires, 4th Dist. No.
10CA10, 2001-Ohio-3661, 2010 WL 3107736.
{¶22} In Spires, Appellant was convicted of various counts of
burglary and breaking and entering. On appeal, one of the assignments of
error presented was the trial court committed plain error in permitting
Washington App. No. 12CA14 14
hearsay to be entered into the record. At issue was a witness’s testimony
that she “received a call at work from her mother informing her that her
house alarm was going off.” Appellant argued the statement was
inadmissible hearsay. The State contended the statement was not offered for
the truth of the matter asserted but rather for the effect on the listener, to
show why she went home and discovered items stolen. We agreed, citing
State v. Wente (8th Dist. No. 85501, 2005-Ohio-4825 at ¶ 8-10 (statement
by burglary victim that she received a call from her mother informing her
that her house had been broken into was not offered for the truth of the
matter asserted and therefore was not inadmissible hearsay).
{¶23} In this instance we find no error, let alone plain error. We
affirm the trial court’s ruling and overrule the first assignment of error.
ASSIGNMENT OF ERROR TWO
{¶24} Appellant also contends the trial court erred in admitting
his tape-recorded statements, which amount to a confession, in the absence
of a corpus delicti. At trial, the State played a tape-recording for the jury.
Carrie Roush identified the voices on the recording as Appellant’s and their
mother’s. In the recording, Appellant is heard admitting to his mother that
he took five of her pain pills. Appellant objected to the admission of this
evidence and argued the tape-recorded conversation established the corpus
Washington App. No. 12CA14 15
delicti in and of itself, and there had not been enough evidence at trial to
establish a crime had been committed to allow Appellant’s confession on the
tape-recording. Citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354 (2004), Appellant further argued Ms. Young’s statements on the tape-
recording were hearsay.
{¶25} The trial court found that as to the corpus delicti rule, there was
sufficient evidence to permit the tape-recorded confession to be admitted.
The court further found there was no Crawford problem as to the mother’s
statements as she was not told what to say by law enforcement and no
problem as to Appellant’s statements as he was not in custody or making a
testimonial statement. However, the court issued the limiting instruction
previously set forth in our statement of facts as to the mother’s statements on
the tape-recording. We begin our analysis of this assignment of error with a
review of the law pertinent to the corpus delicti rule.
A. STANDARD OF REVIEW
{¶26} We review a trial court’s decision as to whether the state
established the corpus delicti of a crime under a manifest weight-of-the-
evidence standard. See In re W.B. II, 4th Dist. No. 08CA18-2009-Ohio
1707, 2009 WL 961500, at ¶31 and 32. Thus, we will uphold the trial court’s
decision as long as the record contains some competent and credible
Washington App. No. 12CA14 16
evidence independent of the defendant’s confession to establish that a crime
occurred. See, e.g., State v. Maranda, 94 Ohio St. 364, 114 N.E. 1038(1916), paragraphs one and two of the syllabus; W. B. at ¶ 32.
{¶27} The decisions in W.B. and State v. Puckett, 191 Ohio App.3d
747, 947 N.E.2d 730 (4th Dist.2010) contain detailed explanation of the
corpus delicti requirement:
The corpus delicti of a crime is essentially the fact of the crime
itself. State v. Hofer, 4th Dist. No. -7CA835, 2008-Ohio-242[2008 WL 203374], ¶ 36; see, also, State v. Haynes, 130 Ohio
App.3d 31, 34, 719 N.E.2d 576 (1998). It is comprised of “(1)
The act [and] (2) the criminal agency of the act.” State v.
Maranda, 92 Ohio St. 364, 114 N.E. 1038 (1916), paragraph
one of the syllabus. See, also, State v. Edwards, 49 Ohio St.2d
31, 34, 358 N.E.2d 1051 (1976), vacated on other grounds, 438
U.S. 911, 98 S. Ct. 3147 (1978); [State v.] Van Hook, supra [39
Ohio St.3d 256] (1988), at 261, 530 N.E.2d 883. ‘It has long
been established as a general rule in Ohio that there must be
some evidence outside of a confession, tending to establish the
corpus delicti, before such confession is admissible.’ Maranda
at paragraph two of the syllabus. In other words, the state must
produce independent evidence of the corpus delicti of a crime
before the court may admit an extrajudicial confession. Hofer
at ¶ 36, citing Maranda at paragraph two of the syllabus and
Haynes at 34, 719 N.E.2d 576.
“The quantum or weight of such outside or extraneous
evidence is not of itself to be equal to proof beyond a
reasonable doubt, nor even enough to make it a prima facie
case. It is sufficient if there is some evidence outside of the
confession that tends to prove some material element of the
crime charged.” Maranda at paragraph two of the syllabus.
(Emphasis sic.); see, also Edwards, supra. That evidence may
be direct or circumstantial. Maranda at 371, 114 N.E. 1038;
State v. Nicely, 39 Ohio St.3d 147, 154-155, 529 N.E.2d 1236Washington App. No. 12CA14 17
(1988); State v. Clark, 106 Ohio App.3d 426, 431, 666 N.E.2d
308 (1995).
{¶28} In Edwards, supra, the Supreme Court of Ohio noted the
historical origins of the corpus delicti rule were designed to protect an
accused from being convicted of a crime that never occurred. The court
stated that, in light of the “vast number of procedural safeguards protecting
the due –process rights of criminal defendants, the corpus delicti rule is
supported by few practical or social-policy considerations.’ (Emphasis sic.)
Id. at 35-36, 358 N.E.2d 1051. Accordingly, there is “little reason to apply
the rule with dogmatic vengeance.” Id.; see, also, State v. Ferris, 4th Dist.
No. 00CA12, 2001 WL 243424 (Jan.29, 2001), at *6. “The burden upon the
state to provide some evidence of the corpus delicti is ***minimal.”
Edwards at 36, 358 N.E.2d 1051; see, also, Van Hook, supra.
B. LEGAL ANALYSIS
{¶29} In this matter, we find the State carried its minimal burden of
proving independent evidence of the corpus delicti of the crime of theft of a
dangerous drug. Appellant was charged with theft, R.C.913.02(A)(1)(2)(3)
and (B)(1)(6), which reads:
(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:
Washington App. No. 12CA14 18
(1) Without the consent of the owner or person authorized to
give consent;
(2) Beyond the scope of the express or implied consent of the
owner or person authorized to give consent;
(3) By deception:
(B)(1) Whoever violates this section is guilty of theft.
(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.
{¶30} Removing Appellant’s confession from consideration, there
was other independent evidence that a crime was committed. Carrie Roush
testified she assisted her mother by picking up her prescriptions which
included her pain medication. During the time Ms. Young stayed with her
daughter, she resisted using her Vicodin pills. When Ms. Young returned to
her apartment, she had nearly the entire prescription, a 60-day supply, After
the telephone call, Ms. Roush went to her mother’s home and recounted her
pills and noted that half of the prescription was missing. Ms. Roush’s
testimony regarding her actions (excluding the alleged hearsay) provides
evidence that her mother was deprived of her pain medication. Ms. Roush
further testified that to her knowledge, only Appellant and his ex-wife were
at Mrs. Young’s home during the relevant time frame (the last weekend in
February) when her mother returned home with nearly the full prescription
Washington App. No. 12CA14 19
of pain medication and the Sunday or Monday that pills were noticed
missing. We agree with the trial court’s finding that the State presented
sufficient evidence to establish the corpus delicti of the crime.
{¶31} We also agree with the trial court’s ruling that there was no
Crawford violation in this matter. The Sixth Amendment to the United
States Constitution provides, “[i]n all criminal prosecutions, the accused
shall enjoy the right * * * to be confronted with the witnesses against him.”
The Supreme Court of the United States has “held that this bedrock
procedural guarantee applies to both federal and state prosecutions.”
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), citing Pointer
v. Texas, 380 U.S. 400, 85 S. Ct. 1065 (1965). Likewise, Section 10, Article
I of the Ohio Constitution provides, “[i]n any trial, in any court, the party
accused shall be allowed * * * to meet the witnesses face to face.” Before
its admission, “[w]here testimonial evidence is at issue * * * the Sixth
Amendment demands what the common law required: unavailability and a
prior opportunity for cross examination.” Crawford, 541 U.S. at 68.
{¶32} Ohio employs two tests to determine whether a statement is
testimonial, dependent upon the status of the recipient. When statements are
made to non-law enforcement, Ohio has adopted the “objective witness”
test, whereby “a testimonial statement includes one made ‘under
Washington App. No. 12CA14 20
circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’” State v. Stahl,
111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 36, quoting
Crawford at 52.
{¶33} In this matter, Appellant was not in custody and his statements
on the tape-recording were not testimonial. Although his mother’s
statements on the tape-recording are arguably, hearsay, we agree that the
limiting instruction was sufficient. The trial court cautioned the jury that the
mother’s statements were to be heard for the purpose of placing Appellant’s
words in context, and not for the truth of the matters asserted in the
statements.
{¶34} As we have agreed with the trial court’s finding that there was
sufficient evidence to establish the corpus delicti of the alleged crime in this
matter, we further find that the trial court did not err in allowing Appellant’s
tape-recorded confession to be admitted into evidence. Therefore we
overrule this assignment of error.
ASSIGNMENT OF ERROR THREE
{¶35} Appellant also contends that jury’s judgment was based
upon insufficient evidence and is against the manifest weight of the
evidence. For the reasons which follow, we disagree.
Washington App. No. 12CA14 21
A. STANDARD OF REVIEW
{¶36} When reviewing a case to determine whether the record
contains sufficient evidence to support a criminal conviction, our function
“is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. See, also, Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979).
{¶37} This test raises a question of law and does not allow us to
weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 174, 485 N.E.2d
717 (1983). Rather, the test “gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319. We reserve the issues of the weight given to the evidence and the
credibility of witnesses for the trier of fact. State v. Thomas, 70 Ohio St.2d
79, 79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1986), paragraph one of the syllabus.
Washington App. No. 12CA14 22
{¶38} Even when sufficient evidence supports a verdict, we may
conclude that the verdict is against the manifest weight of the evidence,
because the test under the manifest weight standard is much broader than
that for sufficiency of the evidence. State v. Banks, 78 Ohio App.3d 206,
214, 604 N.E.2d 219 (1992); State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1983). In determining whether a criminal conviction is against
the manifest weight of the evidence, we must review the entire record, weigh
the evidence and all the reasonable inferences, consider the credibility of the
witnesses, and determine whether, in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial granted. State v.
Garrow, 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; Martin at 175,
485 N.E.2d 717.
{¶39} “A reviewing court will not reverse a conviction where there is
substantial evidence upon which the court could reasonably conclude that all
the elements of an offense have been proven beyond a reasonable doubt.”
State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph two
of the syllabus. Whether the evidence supporting a defendant’s conviction is
direct or circumstantial does not bear on our determination. “Circumstantial
evidence and direct evidence inherently possess the same probative value
Washington App. No. 12CA14 23
and therefore should be subjected to the same standard of proof.” Jenks at
paragraph one of the syllabus.
B. LEGAL ANALYSIS
{¶40} The parties stipulated that the pain medication belonging
to Clara Young contained Hydrocodone. Carrie Roush acknowledged in
her testimony her mother’s prescribed pain medication was Vicodin. Ms.
Roush testified she assisted her mother with her various medications and,
upon receipt of a phone call from her mother, discovered, herself, half of the
pills in the prescription missing. 5 In summary, Carrie Roush’s testimony,
without the alleged hearsay statement, established that her mother had a
nearly full prescription of pain medication when she went home and, after
the weekend, when Ms. Roush counted the pills again, approximately half
were missing. This testimony in and of itself establishes ownership and
deprivation. The alleged hearsay statement only explains how or why she
went to her mother’s house to count the pills.
{¶41} The State also presented testimony from Patrolman Freed, who
testified he was sent to make contact with Clara Young. Patrolman Freed
also testified he assisted her in tape-recording a conversation between Mrs.
Young and Appellant. He testified the purpose of the tape-recording was to
5
We note although the State sufficiently links the allegation in the indictment regarding Hydrocodone to
the testimony regarding “pain medication” and “Vicodin,” no such link is made through testimony to prove
the alleged theft of approximately ten Cyclobenzaprine pills.
Washington App. No. 12CA14 24
elicit a confession from Appellant about stealing the pills. However,
Patrolman Freed did not tell Ms. Young what to say to her son. This tape
recording was played for the jury and the jury was able to hear the Appellant
promptly admit he took five pain pills. The tape recording was admitted as
State’s Exhibit B.
{¶42} The defense attempted to create reasonable doubt by portraying
the victim as a confused and emotional woman. Appellant and his girlfriend
both testified that Mrs. Young had been confused and mistaken in the past
when she accused Appellant of harming her bird and stealing a gas card.
Both denied Appellant’s involvement in any crime. Appellant testified his
father died in 2002 and the victim was Appellant’s only surviving parent.
The transcript indicates Appellant became tearful. Appellant specifically
testified he told his mother he took the pills to “appease her” and “stop the
arguing.”
{¶43} The weight to be given evidence and the credibility to be
afforded testimony are issues to be determined by the trier of fact. State v.
Frazier, 73 Ohio St. 3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000, citing
State v. Grant, Ohio St.3d 465, 477, 1993-Ohio-171, 620 N.E.2d 50. The
fact finder “is best able to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the
Washington App. No. 12CA14 25
credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10
Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). It appears that here, the jury
found Carrie Roush’s testimony that her mother’s Vicodin pills were
missing to be credible. It also appears the jury did not choose to believe
Appellant’s explanation as to why he so quickly admitted to his mother over
the phone taking five pain pills from her. We will not substitute our
judgment for that of the jury under these circumstances.
{¶44} In light of the evidence adduced at trial, we cannot conclude
the jury lost its way and created a manifest miscarriage of justice by finding
Appellant guilty of one count of theft of a dangerous drug. Further, we
conclude that there was substantial evidence upon which the jury could have
concluded that all the essential elements of the crime charged had been
proven beyond a reasonable doubt. As such, we overrule Appellant’s third
assignment of error.
ASSIGNMENT OF ERROR FOUR
{¶45} As Appellant’s final assignment of error, he incorporates
his arguments from the preceding assignments of error and specifically
contends his counsel rendered ineffective assistance by failing to object to
Carrie Roush’s statement “I received a phone call from my mom that some
of her pills were missing.” In Appellant’s reply brief, he further asserts
Washington App. No. 12CA14 26
counsel erred by (1) eliciting Carrie Roush’s testimony regarding
Appellant’s character trait of “fighting back,” and (2) eliciting Chief Sams’
testimony regarding the victim’s emotional state. For the reasons which
follow, we disagree.
A. STANDARD OF REVIEW
{¶46} Criminal defendants have a right to counsel, including a right
to the effective assistance from counsel. McMann v. Richardson, 397 U.S.
759, 770, 90 S. Ct. 1441 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-
Ohio-1366, ¶ 21. To establish constitutionally ineffective assistance of
counsel, a defendant must show (1) that his counsel’s performance was
deficient and (2) that the deficient performance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052 (1984); State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In
order to show deficient performance, the defendant must prove that
counsel’s performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel’s error, the result of the proceeding would
have been different.” State v. Conway, 109 Ohio St.3d 412, 2006 Ohio-
2815, 848 N.E.2d 810, ¶ 95 (citations omitted). “Failure to establish either
Washington App. No. 12CA14 27
element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,
2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need
not analyze both. State v. Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52(2000) (stating that a defendant’s failure to satisfy one of the elements
“negates a court’s need to consider the other”).
{¶47} When considering whether trial counsel’s representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. “A
properly licensed attorney is presumed to execute his duties in an ethical and
competent manner.” State v. Taylor, 4th Dist. No. 07CA1, 2008-Ohio-482,
¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
Therefore, a defendant bears the burden to show ineffectiveness by
demonstrating that counsel’s errors were so serious that he or she failed to
function as the counsel guaranteed by the Sixth Amendment. State v.
Gondor, 112 Ohio St.3d 377, 2006 Ohio-6679, 860 N.E.2d 77, ¶ 62; State v.
Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).
Washington App. No. 12CA14 28
{¶48} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counsel’s errors, the result of the
trial would have been different. State v. White, 82 Ohio St.3d 15, 23, 693
N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989), at paragraph three of the syllabus. Furthermore, courts may not
simply assume the existence of prejudice, but must require that prejudice be
affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,
2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. No. 01CA2592 (Apr.2,
2002); State v. Kuntz, Ross App. No. 1691 (Feb. 26, 1992).
B. LEGAL ANALYSIS
{¶49} We do not believe appellant can show a reasonable
probability that, but for counsel’s error, the result of the proceeding would
have been different. In this matter, had counsel lodged an objection to
Carrie Roush’s testimony that she “received a phone call from [her]mom
that some of her pills were missing,” the State would have made the same
argument as it has on appeal. The same analysis regarding the admission of
Ms. Roush’s statement would apply and the trial court would likely have
admitted the statement. The State’s position regarding Ms. Roush’s
statement is that the statement was not offered for the truth of the matter
asserted, but was offered to show personal knowledge regarding her
Washington App. No. 12CA14 29
mother’s prescription and it assisted in explaining her subsequent actions of
going to her mother’s house and recounting the pills in her prescription.
Furthermore, as a practical matter, lodging the objection and/or requesting
some type of curative instruction would simply call attention to it and
perhaps unduly emphasize the complete content of the statement in the
jury’s mind. We are not convinced that the outcome of the proceeding
would have been different had counsel made an objection. We do not find
Appellant was prejudiced by counsel’s omission.
{¶50} In reference to assignment of error two incorporated herein,
Appellant’s argument that the trial court erred in admitting his confession in
the absence of a corpus delicti, we find Appellant was not rendered
ineffective assistance. Appellant lodged an objection to the playing of the
tape recording at the appropriate juncture at trial. He argued the objection
based on the corpus delicti rule and on the hearsay rules. He renewed his
objection when the tape recording was offered into evidence at the close of
the State’s case. We do not find counsel was prejudiced by counsel’s action
in this regard.
{¶51} In reference to Appellant’s assignment of error three, the
“sufficiency of the evidence” and “manifest weight of the evidence
arguments” incorporated herein, Appellant again argues that counsel’s
Washington App. No. 12CA14 30
failure to object to the alleged hearsay statement of Carrie Roush allowed
the only evidence of ownership and deprivation to be admitted. However, as
we have reasoned above, Ms. Roush’s testimony that she assisted her mother
with her medications after her hospital stay and was aware of what she took
and the amount she had, coupled with her testimony that she counted them
with her mother later and half were missing, alone establishes the ownership
and deprivation. The alleged hearsay that she “received a phone call from
her mother that half her pills were missing” only clarifies why she went to
her mother’s to count the medicine. And as indicated above, we consider it
reasonable trial strategy not to call attention to the statement by objecting to
it.
{¶52} In Appellant’s reply, he further argues counsel erred by
eliciting testimony from Carrie Roush regarding her brother’s trait of
“fighting back.” As discussed above, the defense strategy was to portray the
victim as a woman prone to making rash accusations against Appellant,
emotional, anxious, and often mistaken. Defense counsel elicited testimony
from Ms. Roush which further supported this characterization of the victim.
Ms. Roush admitted her mother did not handle family strife well. She
testified her mother would have anxiety attacks. She testified she questioned
her mother’s memory. Counsel elicited Ms. Roush’s opinion that her mother
Washington App. No. 12CA14 31
“jumps to conclusions” and was “confrontational.” Against the backdrop of
testimony that the mother had a volatile emotional state and memory
problems, Ms. Roush’s testimony that her brother would “fight back”
against an accusation appears harmless. Moreover, Appellant took the
opportunity to testify he did not “fight back” in this particular instance
because he was tired of arguing with his mother and wanted to appease her.
{¶53} Finally, Appellant argues counsel was deficient for calling
Chief Sams and eliciting testimony from him that the victim’s emotional
state was upset and angry. We disagree. The direct testimony of Aimee
Young and Appellant also indicated an emotional woman known to argue
with her children and grandchildren. The substance of Chief Sams’
testimony also showed B& W Pharmacy records were never investigated,
the pill bottle was never photographed or fingerprinted, the pills were never
counted, and no one took a statement from Appellant or his ex-wife. He
testified no search was made of Appellant’s residence. This testimony from
Chief Sams was elicited, ostensibly, to raise reasonable doubt in this matter.
Possibly, to further discredit the State’s case, Chief Sams testified that
Patrolman Freed was no longer with the Beverly Police Department. As
such, we do not find Appellant was prejudiced by the actions of trial counsel
Washington App. No. 12CA14 32
with regard to the testimony elicited from Carrie Roush or Chief Sams. As
such, we also overrule this assignment of error.
JUDGMENT AFFIRMED.
Washington App. No. 12CA14 33
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Abele, J.: Concurs in Judgment & Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.