IN RE: CORY P.
Case No. 2012 AP 02 0016
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 14, 2012
2012-Ohio-5453
Patricia A. Delaney, P.J.; John W. Wise, J.; Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Appeal from Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 11JD00370. JUDGMENT: Affirmed.
For State of Ohio
RYAN STYER Tuscarawas County Prosecutor Tuscarawas County Prosecutor’s Office 125 East High Avenue New Philadelphia, Ohio 44663
For Cory P.
CHARLYN BOHLAND Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215
{¶1} Appellant, Cory P., appeals from the January 18, 2012, Judgment Entry of the Tuscarawas County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 19, 2011, a complaint was filed in the Tuscarawas County Court of Common Pleas, Juvenile Division, alleging that appellant was a delinquent child by virtue of having committed four counts of theft in violation of
{¶3} Pursuant to a Judgment Entry filed on October 18, 2011, one count of theft was dismissed upon appellee’s motion.
{¶4} On December 8, 2011, appellant filed a notice indicating that he intended to introduce at trial printouts of “Facebook” conversations between himself and “a participant in the delinquent acts child is alleged to have committed.”
{¶5} Subsequently, a bench trial commenced on December 15, 2011. At trial, Clyde Swanson testified that, on June 30, 2011, his son’s XR100 red and white Honda dirt bike was stolen sometime after midnight from his detached garage. The bike was titled in Swanson’s name, and he testified that he had paid $1,200.00 for the bike approximately two years earlier. According to Swanson, the bike was recovered a week or two later in “beat up” condition. Transcript at 23. Swanson testified that the bike was found close to appellant’s house. Swanson testified that appellant, a couple of years earlier, used to hang out with his son and stayed overnight at his house and that
{¶6} The next witness to testify was Michael Tomer. Tomer testified that he had a yellow Suzuki JR80 dirt bike that he purchased in 1998 or 1999 for $600.00. He testified that when he came home from vacation in July of 2011, the bike was gone from his detached garage. The back plexiglass window had been pushed out of the garage and his tool box, which had been in front of the window, had been moved out of the way. The following testimony was adduced after Tomer was asked to explain how the bike was recovered:
{¶7} “A. Um, I’d seen [appellant] and [J.C]…
{¶8} “Q. Now when you say [appellant], who do you mean?
{¶9} “A. [Appellant].
{¶10} “Q. Okay, and [J.C], you mean [J.C]?
{¶11} “A. Yes.
{¶12} “Q. Okay.
{¶13} “A. I’d seen them walking up by the school and…
{¶14} “Q. By Bolivar Elementary School?
{¶15} “A. Correct, and I, uh, drove up through there and confronted them and after a couple of minutes of confrontation they, uh, [appellant] said he’d text somebody that knew where the bike was and that he could show me where it was so we went out
{¶16} “Q. Okay, and, um, did you have any reason to believe that [appellant] knew where your bike was?
{¶17} “A. I didn’t know if he knew but I, from all the stuff I heard going around that I, uh, knew if he didn’t know that himself that he knew somebody that would know was involved so...
{¶18} “Q. And he appeared to text someone?
{¶19} “A. Yes, he was texting quite a bit when I was talking to, mainly I was talking to [J.C] and [appellant] was texting.
{¶20} “Q. Okay, and [J.C.] was with [appellant]?
{¶21} “A. Correct.
{¶22} “Q. So if [appellant] needed to know from [J.C.] there was no reason to text him?
{¶23} “A. Correct.
{¶24} “Q. Okay. Did [appellant] tell you who it was he was texting?
{¶25} “A. No.
{¶26} “Q. Okay, no name?
{¶27} “A. No.” Transcript at 38-39.
{¶28} Tomer testified that the bike, which was recovered from a ditch outside of town, had scratches from road rash and that the throttle was broken. He further testified that he did not know appellant, but had seen him walking by.
{¶30} Chief Haugh testified that he conducted an investigation after Tomer reported his dirt bike stolen. He testified that he was patrolling on the evening of July 5, 2011 at around midnight near the Bolivar Intermediate School when he saw two shadows on the playground equipment at 12:30 p.m. Chief Haugh then parked his cruiser and crawled over to where appellant and J.C. were talking. He testified that he saw appellant and J.C. get into Tomer’s Jeep. Chief Haugh later caught up with Deputy Ryan Hamilton, appellant and J.C. at Tomer’s residence. At the time, a yellow dirt bike was strapped to the hood of Tomer’s Jeep. Chief Haugh testified that he knew appellant by sight, although he did not know appellant’s name, and that appellant had a lot of fresh road rash on his hands, arms, face and nose.
{¶31} Chief Haugh further testified that he took appellant home and that appellant’s mother gave him permission to interview appellant. During the interview, appellant told the Chief that he did not take the items, but that he was with J.C. when the items were taken. Appellant specifically referred to the Swanson theft and said, with
{¶32} On cross-examination, Chief Haugh indicated that he did not know if a stolen dirt bike was ever recovered from appellant’s garage because he turned the matter over to Sergeant Houze. When asked if there was physical evidence linking appellant to any crime, Chief Haugh cited to appellant’s wounds and the blood on Tomer’s dirt bike. However, he admitted that the blood was never tested and admitted that there was no physical evidence linking appellant to any crime. He further testified that, during the investigation, a witness came forward and indicated that he or she had seen a young male with a Mohawk riding one of the stolen dirt bikes. Chief Haugh did not know if appellant ever sported a Mohawk, but indicated that he knew that J.C. used to wear one. He further testified that he had not received statements from any witnesses who saw appellant riding a stolen dirt bike.
{¶33} On redirect, Chief Haugh testified that there was blood on the side of the tank of the Tomer yellow dirt bike when it was recovered on July 5, 2011. Chief Haugh testified that appellant had wounds that looked like they had been bleeding while J.C. appeared to be free of injury.
{¶34} Deputy Ryan Hamilton of the Tuscarawas County Sheriff’s Office testified that he assisted Chief Haugh in an investigation that began after dark on July 5, 2011. Deputy Hamilton testified that after Tomer left with appellant and J.C. in his Jeep, he went to the Tomer residence. Deputy Hamilton testified that appellant had “many
{¶35} On cross-examination, Deputy Hamilton testified that there was no physical evidence linking appellant to any crime. He further admitted that J.C. was not entirely truthful during his interview and that he yelled at J.C. to stop lying. The following is an excerpt from Deputy Hamilton’s testimony on redirect:
{¶36} “Q. Um, in regards to [J.C.], uh, interview. Attorney Brechbill asked you if he [J.C.] lied and you said in the beginning. Can you elaborate on that please, without telling us what he said?
{¶37} “A. Right, uh, I just remember he backtracked a couple different times in the beginning. In the end he copped to saying, yes, I took the truck,1 this is what I did, these are things I did, which led me and Chief Haugh to believe that, towards the end he started telling the truth because he was copping to what he allegedly did.
{¶38} “Q. At the end of the interview were you confident in certain things that [J.C] had told you?
{¶39} “A. Yes.
{¶40} “Q. Okay, now in the end [J.C.] provided you confessions?
{¶41} “A. Correct.
{¶42} “Q. Okay, and in the grand scheme of things these were not, it was not difficult to get those confessions?
{¶43} “A. No.
{¶45} “A. No.
{¶46} “Q. Okay, did he ever offer to cooperate?
{¶47} “A. No.” Transcript at 106-107.
{¶48} Sergeant Eric Houze testified that he took the report of Swanson’s stolen bike and that the red bike at appellant’s home was not Swanson’s bike. According to the Sergeant, Swanson’s bike was eventually recovered at another location.
{¶49} At trial, J.C. admitted that he recently had been convicted of three counts of breaking and entering and three counts of theft and had been sentenced. He testified that he was not testifying as part of any plea bargain and had nothing to gain by testifying.
{¶50} J.C. testified that they both stole on more than one night. He testified that appellant, with respect to the Tomer dirt bike, indicated that he knew where a dirt bike was and mentioned the Tomer residence. J.C. testified that when appellant approached the Tomer residence, J.C stayed in the alley and watched appellant break into the garage at about 1:00 a.m. According to J.C., appellant pried open the plexiglass window and crawled inside the garage and took the dirt bike. He further testified that appellant then walked the bike down the road and then took off on Tomer’s dirt bike while J.C. rode appellant’s dirt bike, which was red. At the time, J.C. had a Mohawk. J.C. also testified that the two dirt bikes crashed into each other and that appellant had road rash on his face and hands and perhaps leg and sprained or broken fingers. Appellant, according to J.C., then ditched the Tomer bike. A few days later, Tomer confronted J.C. and appellant wanting to know where the bike was. J.C. testified that he
{¶51} J.C. also testified that appellant indicated that he knew of a dirt bike that they could steal and said that the bike belonged to Cody Swanson, who is Clyde Swanson’s’ son. J.C. testified that he refused to go to Swanson’s property because he knew Cody and that he waited at the city ball field while appellant went to the Swanson residence and stole the dirt bike. According to J.C., appellant then rode around on the bike for a few minutes and then got off the bike and said that they should look at a red Ford F150 pick-up truck that was visible from the field. The keys were in the truck. J.C. testified that appellant insisted that they should take the truck, but that he initially told appellant no. After appellant then got into the truck and started it, J.C. got into the truck and followed appellant as he rode Swanson’s dirt bike. J.C. admitted that they had stolen the dirt bike and stolen the truck. After ditching the truck, the two both rode the dirt bike.
{¶52} On cross-examination, J.C. admitted that he had pleaded guilty to breaking and entering and stealing with respect to the Swanson dirt bike and breaking and entering and stealing with respect to the Tomer dirt bike, although he testified that “I did not taken any action, but I was with [appellant].” Transcript at 150. On redirect, J.C. also admitted that, during his interview by Deputy Hamilton, he did not start out telling the truth because he was scared and that by the end of the interview, he was telling the
{¶53} At trial, appellant’s mother testified, over objection, that she assisted appellant in preparing exhibits for trial. She testified that she printed out Facebook messages for appellant. She testified that she was with appellant at the library when he copied and pasted messages from Facebook onto a disc and that appellant did not modify or change any of the information. She further testified that appellant never confessed any crimes to Chief Haugh, but rather provided Haugh with the location of a stolen item that J.C. had told appellant about. Appellant’s grandmother testified similarly as to the copying of the Facebook messages.
{¶54} Appellant testified that he cooperated in the investigation of the stolen Swanson dirt bike and that the red dirt bike in his garage was his bike. The VIN on the red bike in his garage did not match the VIN on the stolen bike. Appellant further testified that he did not know about the stolen Tomer dirt bike until confronted by Tomer at the school. Appellant admitted telling Tomer where the stolen dirt bike was located, but testified that J.C. had told him where the bike was located and had threatened to hurt him if he told. According to appellant, J.C. carried a knife. Appellant denied any involvement with the theft of the Tomer dirt bike or with the theft of the Swanson dirt bike and denied telling Chief Haugh that he was with J.C. when the thefts took place. He testified that J.C. told him where the stolen items were. Appellant also testified that he never told police that J.C. had threatened him with a knife.
{¶56} On cross-examination, appellant testified that he did not tell the officers, who came to his house to look at his dirt bike, that J.C. had the Swanson’s bike, because he did not know that J.C. had the bike at the time. While appellant, in his written statement, had indicated that he knew that J.C. had the Swanson’s dirt bike, appellant testified that his written statement to police was all false. Appellant further denied telling Chief Haugh that he was with J.C. when J.C. stole the two bikes and testified that Haugh must have misunderstood what he said. Appellant claimed that he told Chief Haugh that he knew where the bike was.
{¶57} On cross-examination, the State introduced State’s Exhibit A, fabricated Facebook messages, without alerting appellant or his counsel that the messages were fabricated. In the messages, appellant admitted to stealing the items. Appellant identified Exhibit A as the Facebook messages that he had printed out and given to his counsel and appellee had appellant read the fabricated confessions that he had stolen the items. After appellant denied writing the messages, the Assistant Prosecuting Attorney admitted that she had made up the Facebook messages during her lunch break. She indicated that she had done so to show that it was “pretty obvious that you
{¶58} Pursuant to a Judgment Entry filed on January 5, 2012, the trial court found that appellant was delinquent in violation of
{¶59} Appellant now raises the following assignments of error on appeal:
{¶60} “I. THE STATE’S IMPROPER ACTIONS IN PRESENTING FALSE FACEBOOK MESSAGES AS ‘STATE’S EXHIBIT A.’ AND MISLEADING CORY AND HIS COUNSEL DEPRIVED CORY OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶61} “II. THE JUVENILE COURT VIOLATED CORY’S RIGHT TO DUE PROCESS WHEN IT ADJUDICATED HIM DELINQUENT OF THEFT AND RECEIVING STOLEN PROPERTY WHEN THERE WAS NO PHYSICAL EVIDENCE LINKING CORY TO THE OFFENSE, AND THE EVIDENCE WAS CONTRADICTORY AND BASED ON THE TESTIMONY OF AN UNTRUTHFUL CO-DEFENDANT, IN
{¶62} “III. THE JUVENILE COURT ERRED WHEN IT FAILED TO CONSIDER COMMUNITY SERVICE IN LIEU OF FINANCIAL SANCTIONS BEFORE ORDERING CORY TO PAY COURT COSTS AND FINES, IN VIOLATION OF
{¶63} “IV. CORY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
I
{¶64} Appellant, in his first assignment of error, argues that he was deprived of a fair trial by the State’s improper actions in presenting false Facebook messages as “State’s Exhibit A” and misleading appellant and his counsel.
{¶65} As is stated above, at trial, appellant presented Facebook messages that he asserted supported his claim that J.C. was lying about appellant’s involvement. The Facebook messages were admitted as appellant’s Exhibits 4, 5 and 6. On cross examination, appellee showed appellant what was marked as State’s Exhibit A and asked appellant if he recognized the same and appellant indicated that they were the messages from Facebook that he had printed out and provided to his counsel. When appellant’s counsel asked for clarification as to what exhibit appellee was referring to, appellee was evasive. Subsequently, appellee stated that she had fabricated Exhibit A during her lunch break in order to show that Facebook pages could be manipulated. Appellant now argues that the prosecutor’s actions deprived him of a fair trial.
{¶67} Evid.R. 611(B) states that cross-examination shall be permitted on all relevant matters and matters affecting credibility. “The limitation of * * * cross examination lies within the sound discretion of the trial court, viewed in relation to the particular facts of the case. Such exercise of discretion will not be disturbed in the absence of a clear showing of an abuse of discretion.” State v. Acre, 6 Ohio St.3d 140, 145, 451 N.E.2d 802 (1983). But “[i]t is improper for an attorney, under the pretext of putting a question to a witness, to put before a jury information that is not supported by the evidence.” State v. Smidi, 88 Ohio App.3d 177, 183, 623 N.E.2d 655 (6th Dist.1993). And “[p]rosecutors must avoid insinuations and assertions calculated to mislead.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). A cross examiner may ask a question if the examiner has a good faith belief that a factual predicate for the question exists. State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272 (1988), paragraph two of the syllabus. Moreover, a prosecutor may not knowingly present false testimony to procure a verdict. McMullen v. McMullen, 3 Ohio St.2d 160, 165, 209 N.E.2d 449 (1965). When the State obtains a conviction by the knowing use of false evidence, the defendant is entitled to a new trial “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Argurs 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
{¶68} We find that appellee acted improperly in misleading appellant and not disclosing to appellant or his counsel that Exhibit A was a document that she had fabricated during her lunch hour in order to cross-examine appellant. Appellee clearly ambushed appellant and his counsel with the fabricated document and was not immediately forthcoming about the nature of such exhibit.
{¶69} However, we note that defense counsel never objected to appellee’s conduct. “Absent plain error, an appellate court will not consider errors that the defendant failed to object to at the trial level.” State v. Thompson, 127 Ohio App.3d 511, 522, 713 N.E.2d 456 (8th Dist. 1998). Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. In order to find plain error under Crim R. 52(B), it must be determined, but for the error, the outcome of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus.
{¶70} Because the trial in this case was a bench trial, as opposed to a jury trial, and based on the evidence, as set forth in the following assignment of error, we find that appellant was not prejudiced. The trial court, as trier of fact, was aware that appellee
{¶71} Appellant’s first assignment of error is, therefore, overruled.
II
{¶72} Appellant, in his second assignment of error, argues that the finding of delinquency of theft (with respect to the yellow dirt bike) and receiving stolen property (with respect to the red dirt bike) was against the manifest weight of the evidence.
{¶73} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).
{¶74} Appellant specifically argues that his co-defendant, J.C., was not credible and that there was no physical evidence linking him to the crimes. Appellant notes that J.C. admitted to the offenses in this case and was sentenced, but that, at trial, he placed all of the blame on appellant. Appellant also notes that J.C. admitted that he initially lied to police about his involvement and had to be cautioned against lying.
{¶75} As is stated above, Michael Tomer testified at trial that when he confronted appellant and J.C. about the yellow dirt bike, appellant said that he would text someone who knew where the bike was and that he could show Tomer where the
{¶76} In addition, Chief Haugh testified that appellant had a lot of road rash on his hands, arms and face and that appellant admitted being present when the yellow dirt bike was taken. Chief Haugh testified, with respect to the Tomer bike, that appellant “said he helped [J.C.] get in through the window and that appellant had confessed.” Transcript at 62. There was blood on the bike and appellant was covered with road rash. According to the Chief, appellant indicated that he was part of the theft of the Swanson dirt bike. However, in his written statement, appellant changed his story and denied involvement.
{¶77} While appellant contends that J.C. was not truthful about his involvement, the record is clear that appellant was also less than truthful about his involvement. Appellant testified that his written statement to police was completely false. The trial court, as trier of fact, was in the best position to assess credibility. The trial court, in its January 5, 2012, Judgment Entry, indicated that it did not find J.C.’s character to be without question, but found that after he was already sentenced, J.C. began to tell the
{¶78} Based on the foregoing, we find that the finding of delinquency was not against the manifest weight of the evidence.
{¶79} Appellant’s second assignment of error is, therefore, overruled.
III
{¶80} Appellant, in his third assignment of error, argues that the trial court erred when it failed to consider community service in lieu of financial sanctions before ordering appellant to pay court costs and fines, in violation of
{¶81} Pursuant to
{¶82} Appellant argues that since he is indigent, the court should have considered imposing a term of community service in lieu of costs.
{¶83} In the case sub judice, the trial court was aware of appellant‘s indigency. The trial court had previously appointed counsel and appellant’s mother had filed an affidavit of indigency on appellant’s behalf. There is nothing in the record to suggest that the trial court failed to consider community control instead of a financial sanction. See In re Davis, 5th Dist. No. 06CA163, 2007-Ohio-6994, ¶ 35. Furthermore,
{¶84} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶85} Appellant, in his fourth assignment of error, argues that he was denied effective assistance of trial counsel.
{¶86} Our standard of review for ineffective assistance claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel‘s assistance was ineffective; i.e., whether counsel‘s performance fell below an objective standard of reasonable representation and was violative of any of his essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel‘s ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing that there is a reasonable probability that but for counsel‘s unprofessional error, the outcome of the trial would have been different. Id.
{¶87} Appellant specifically contends that his trial counsel was ineffective in failing to object to the prosecutor’s improper use of the fabricated Facebook messages and in failing to object to imposition of court costs and restitution without first considering community service.
{¶88} Based on our disposition of appellant’s first and third assignments of error, appellant’s fourth assignment of error is moot.
By: Edwards, J.
Delaney, P.J. and
Wise, J. concur
JUDGES
JAE/d1002
IN RE: CORY P.
CASE NO. 2012 AP 02 0016
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
2012-Ohio-5453
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed to appellant.
JUDGES