State v. Bean, 22035 (11-16-2007)State v. Bean, 22035 (11-16-2007)
{¶ 1} Appellant, Raven Bean, appeals from his conviction in the Dayton Municipal Court of two counts of petty theft. Bean raises two assignments of error. In the first, he contends the trial court abused its discretion in denying him a continuance of his scheduled trial date. In the second, he contends he was denied the effective
{¶ 2} The events leading up to Bean‘s trial are set out in his brief and are supported by our view of the record. They are as follows:
{¶ 3} On November 22, 2006, Bean was arraigned on charges of petty theft,
{¶ 4} At trial, testimony revealed that on November 30, 2006, off-duty Dayton
{¶ 5} After Officer McReynolds testified on direct examination, Bean‘s counsel indicated he was unable to proceed with cross-examination because he had not completed his investigation of the Kroger incident. Later, during final argument, Bean‘s counsel responded as follows:
{¶ 6} “Mr. Cromley: Your Honor, as we eluded [sic] to earlier in the Motion For Continuance, we would offer that had we been able to complete the investigation, we would have obtained the following information that night, and I proffer that documentary video and testimonial evidence would have presented that Mr. Bean was improperly stopped and that any discovery of any merchandise took place before he was passed [sic] the last point of any payment that he did indicate to the security officer that he had some items that he would pay for before leaving.
{¶ 7} “Ms. Musto: Your Honor, I‘m gonna object. That fact‘s not in evidence.”
{¶ 8} The defense presented no evidence, and the court found Bean guilty of petty theft.
{¶ 9} Furthermore, testimony at trial indicated that on November 8, 2006, Bean
{¶ 10} Bean‘s trial counsel conducted an extensive cross-examination of both State‘s witnesses. At the conclusion of the State‘s case, Mr. Cromley again made a statement for the record which he characterized as a proffer:
{¶ 11} “Mr. Cromley: And Your Honor what we are proffering in this theft offense was the evidence that we expected to obtain, one not only from either security document and or video evidence, but as well our attempt to contact and obtain evidence from the driver of the bus. Obviously we were not able to obtain that prior to today.
{¶ 12} “We requested a continuance which was denied. We would expect if that evidence were obtained and presented today, that they would establish that Miss Nuthman is mistaken of the identity of Mr. Bean as the individual who got on the bus with that jacket and that he was mistakenly identified when brought back to her for identification as the only suspect brought back by the police. And that the merchandise, of course we brought out on her cross, that the merchandise was brought back by the police officer and not in the possession of Mr. Bean.
{¶ 13} “And we believe that that evidence, if submitted, would be sufficient to establish Mr. Bean‘s innocence or at least a reasonable doubt, reasonable doubt in the case, and that would be our case in chief. And with that proffer we would rest.
{¶ 14} “The Court: Okay. State wish to be heard on that?
{¶ 15} “Ms. Musto: No, Your Honor.”
{¶ 16} Bean‘s counsel was able to successfully object to the admission of State‘s Exhibit 4 and because Ms. Nuthman could not be established as the keeper of the records, Bean was found not guilty of the criminal trespass charges. (Tr. 33.) However, as we stated above, Bean was found guilty of the petty theft charges and sentenced to 180 days in jail. (Tr. 38, 29.)
{¶ 17} Whether to grant or refuse a motion for a continuance is addressed to the sound judicial discretion of the court, and the court‘s ruling will not be disturbed on review unless it is demonstrated that the discretion has been abused. Curtis v. Chiaramonte (1978), 53 Ohio St.2d 15, 7 O.O.3d 61, 371 N.E.2d 839. An abuse of discretion connotes more than a mere error in judgment; it signifies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. Whether a trial court abuses its discretion by denying a request for a continuance depends on the circumstances in the case, particularly in the reasons presented to the trial judge at the time the request is denied. State v. Unger (1981), 67 Ohio St.2d 65, 67, 21 O.O.3d 41, 423 N.E.2d 1078.
{¶ 18} Bean contends the trial court abused its discretion in refusing to grant his continuance because his lawyer had not completed his investigation in preparation for the two trials. In particular, Bean notes that he wanted to view the video surveillance tapes from the two stores and interview the driver of the RTA bus to find out what happened on the bus. Bean also contends the trial court abused its discretion in not granting him the continuance because the facts in his case were indistinguishable from In re Sherlock (1987), 37 Ohio App.3d 204, 525 N.E.2d 512. In that case we held that
{¶ 19} The State argues that the trial court did not abuse its discretion because both continuance requests were made on the day of trial and one continuance was actually granted, giving Bean an additional twenty (20) days to prepare for the trials. The State notes that its witnesses were both present on the scheduled trial dates. The State argues that Bean did not indicate how much time he needed for further investigation or that there was any other evidence in existence which might be favorable to him. The State argues that In re Sherlock is distinguishable because that case was an appeal of a contempt finding because counsel refused to speak after counsel had been assured on a prior occasion that the case would not proceed until a related felony was disposed of in the common pleas court. Lastly, the State argues that Bean failed to proffer the existence of any exculpatory evidence that could be discovered in the event the continuance was granted. The State notes that even if the video surveillance camera showed that Bean had not passed the last point of sale when he was apprehended, he had already completed his crime when he shoved the steaks into his pants.
{¶ 20} This Court in State v. Williams (1984), 16 Ohio App.3d 232, 16 OBR 248, 475 N.E.2d 168, held that it was well settled that in a prosecution for theft under
{¶ 21} As to the Meijer theft, defense counsel contended that he was unable to contact the bus driver or to view a surveillance video if one existed. Defense counsel did not suggest the bus driver would present exculpatory evidence on Bean‘s behalf. In conclusion, we cannot say that the trial court abused its discretion in denying Bean‘s second request for a continuance. The first assignment of error is Overruled.
{¶ 22} In his second assignment, Bean contends that he was denied the effective assistance of counsel. He notes that his counsel failed to cross-examine Officer
{¶ 23} The State argues trial counsel‘s decision not to question Officer McReynolds and not to present witnesses in his own behalf did not constitute ineffective assistance of counsel. We agree with the State‘s argument in that respect. Bean contends he was not guilty of theft because he had not passed the point of sale (the registers) when he dropped the steak. That was not contested. There was no suggestion in this record that there was any witness who could testify on behalf of Bean. There was no evidence anyone witnessed the Kroger theft other than the officers and Bean himself. In the Meijer matter, there is no evidence in the record that the bus driver would have provided favorable evidence for Bean. Trial counsel extensively cross-examined Stacey Nuthman about the certainty of her identification of Bean as the thief. He successfully demonstrated that Ms. Nuthman was not the keeper of the store‘s records and prevented Bean‘s conviction on the trespass charge. There is no evidence that counsel could have suppressed the identification of Bean by Nuthman as she had a full opportunity to observe Bean at close quarters in the store before he fled and she was “very sure” of his identify as the individual who stole the “Dickie” jacket. Lastly, there was no evidence the bus driver would have been a useful witness for Bean.
{¶ 24} In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the Court interpreted the meaning of the accused‘s right to counsel and the standard by which ineffective assistance of counsel should be determined. The
{¶ 25} Bean has failed to demonstrate that his trial counsel was constitutionally ineffective. The second assignment is Overruled. The judgment of the trial court is Affirmed.
GRADY and DONOVAN, JJ., concur.