Lead Opinion
{¶ 2} March 23, 2005, an indictment in fifteen counts by the Geauga County Grand Jury was filed against Mr. Cochran: two counts of breaking and entry, fifth degree felonies in violation of R.C.
{¶ 3} The matter was scheduled for trial commencing September 27, 2005. That day, the trial court overruled Mr. Cochran's motion for a continuance, and granted, in part, his motion in limine regarding certain testimony. On the state's motion, the trial court dismissed thе grand theft count.
{¶ 4} September 29, 2005, the jury returned a verdict of guilty on each of the remaining fourteen counts. March 1, 2006, the trial court sentenced Mr. Cochran to an aggregate term of eight years imprisonment. March 29, 2006, Mr. Cochran timely noticed this appeal, making nine assignments of error:
{¶ 5} "[1.] Defendant was denied due process of law and fair trial when the court permitted an investigating detective, Elizabeth Hurd testified [sic] concerning her investigation in Portage County.
{¶ 6} "[2.] Defendant was denied due process of law and his right to present a defense when the court did not grant a continuance and totally excluded a newly discovered defense witness [.]
{¶ 7} "[3.] Defendant was denied due process and a fair trial when the court allowed extensive evidence concerning other criminal acts and failed to proper [sic] limit that evidence in its jury instructions [.]
{¶ 8} "[4.] Defendant was denied due process of law when the court did not fully inform the jury as to the definition of an occupied structure.
{¶ 9} "[5.] Defendant was denied due process of law when the court gave confusing and incomplete instructions defining the offense of theft.
{¶ 10} "[6.] Defendant was denied due process of law when the court did not instruct on the lesser offense of burglary under §
{¶ 11} "[7.] Defendant was denied due process of law when the court failed to instruct the jury that pleas of guilty by co-conspirators could not be considered as evidence of defendant's guilt.
{¶ 12} "[8.] Defendant was denied due process of law when he was convicted of burglary, a second degree felony [.]
{¶ 13} "[9.] Defendant was denied due process of law when he was sentenced to a maximum term of imрrisonment based on a misapplication of the sentencing laws and facts found by the court."
{¶ 14} Mr. Cochran's convictions spring from a theft ring he allegedly operated with Mr. Jack Laughery and Mr. Angelo Vecchio, each of whom testified for the state. The three friends would evidently drive around Geauga and Portage counties, looking for homes where the residents were out. They would then take valuables from the properties, which they would sell. At trial, Portage County detective Elizabeth Hurd and Geauga County detective Juanita Vetter testifiеd regarding their investigations of the crimes; the balance of the homeowners whose premises were robbed testified, as did various purchasers of the stolen property.
{¶ 15} By his first assignment of error, Mr. Cochran attacks the trial court's decision to let Detectives Hurd and Vetter testify regarding their conversations with Mr. Laughery, various of the robbery victims, and other witnesses during the course of their investigations. He further objects that the detectives were allowed to testify regarding exhibits and pictures of the alleged stolen items; and, that Detectivе Vetter testified regarding elements of the Portage County investigation. Mr. Cochran contends all of this testimony was inadmissible hearsay. The state replies that the detectives' testimony was not introduced to establish the truth of any matter, but, rather, to illustrate their investigations, and is admissible. State v. Thomas (1980),
{¶ 16} We agree. Evidentiary rulings are within the sound discretion of the trial court: we may not disturb them absent a clear abuse of that discretion. State v. Bennett, 11th Dist. No. 2002-A-0020,
{¶ 17} The first assignment of error lacks merit.
{¶ 18} By his second assignment of error, Mr. Cochran alleges the trial court improperly denied his motion for a continuance, first made the day trial commenced, and renewed the second day of trial. Mr. Cochran desired the continuance in order to obtain the testimony of his mother, Alicia Gibson, for alibi purposes. The state opposed the continuance, which the trial court denied, thus excluding Ms. Gibson's testimony. Mr. Cochran presently contends the trial court erred in not applying the test set forth by the Supreme Court of Ohio in Lakewood v.Papadelis (1987),
{¶ 19} We disagree. While not formally applying the Papadelis test, it is evident that the trial court did balance the state's interest against Mr. Cochran's Sixth Amendment right to present a defense, as the Supreme Court requires. Papadelis at 5. The trial court noted that the request to continue in order to obtain Ms. Gibson's testimony was made at the "eleventh hour;" it took into consideration the state's argument that seventeen witnesses had been subpoenaed, and were prepared to go forward. These issues go to the first Papadelis factor, surprise or prejudice tо the state was great. Id. The trial court considered the fact that Mr. Cochran had another alibi witness, his grandmother. This goes to the second Papadelis factor, the preclusion of Ms. Gibson's testimony was less likely to affect the outcome of the trial, as Mr. Cochran had another alibi witness. Id. The trial court noted that the case against Mr. Cochran had been pending for six months prior to trial, and that it was somewhat incredible that his own mother had only recalled her testimony, and contacted his counsel, days prior to trial. This goes to the third Papadelis factor, thе indicia of bad faith or willfulness regarding Ms. Gibson's late appearance on behalf of her son are great. Id.
{¶ 20} In effect, the trial court considered the first threePapadelis factors, in arriving at the fourth, that only the denial of a continuance, and the exclusion of Ms. Gibson's testimony, were reasonable counters to the discovery violation. Under the circumstances of this case, no error pertains. "It is only when exclusion acts to completely deny defendant his or her constitutional right to present a defense that the sanction is impermissible." Papadelis at 5.
{¶ 21} The second assignment of error lacks merit.
{¶ 22} By his third assignment of error, Mr. Cochran attacks the triаl court's partial denial of his motion in limine concerning evidence of other alleged criminal acts. The trial court held that evidence on this point could be introduced to show a plan between Mr. Cochran and his alleged accomplices, but that he was entitled to a limiting instruction regarding "bad character." Mr. Cochran maintains that the state's purpose in introducing "other acts" evidence was to show his bad character, and that this evidence was more prejudicial than probative.
{¶ 23} We disagree. "Under Evid.R. 404(B), `evidenсe of other crimes, wrongs, or acts is not admissible to prove' a defendant's character as to criminal propensity. `It may, however, be admissible * * * [to show] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'" State v. Noting,
{¶ 24} The third assignment of error lacks merit.
{¶ 25} By his fourth assignment of error, Mr. Cochran alleges the trial court failed to give an appropriate definition of the term "occupied structure" when instructing the jury on burglary. Mr. Cochran notes that the burglary statute, R.C.
{¶ 26} Mr. Cochran is mistaken. The trial court's instruction regarding burglary contained a definition of the term "occupied structure." Thus, it cannot be said the trial court failed to instruct on an element of the offense. The only question is whether the trial court's definition of "occupied structure" was sufficient. It was. Further, as trial counsel failed to оbject to the instruction given, we may only review for prejudicial error. State v. Wojtkiewicz, 11th Dist. No. 2005-P-0098,
{¶ 27} Jury instructions should contain plain, unambiguous statements of the law applicable to the case. Nichols at ¶ 30. In this case, the trial court instructed the jury that to find Mr. Cochran guilty of burglary as specified, they would have to "* * * find beyond a reasonable doubt that the Defendant did, on the assigned dates of each of these counts * * * by force, stealth, or deception, trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with the purpose to commit in the habitation any criminal offense." This complies with the statutory language. The trial court further instructed the jury that: "[a]n occupied structure means any house, building, or other structure or shelter or any portion thereof."
{¶ 28} Mr. Cochran's complaint that the definition of "occupied structure" set forth at R.C.
{¶ 29} The fourth assignment of error lacks merit.
{¶ 30} By his fifth assignment of error, Mr. Cochran asserts that the trial court's instructions regarding theft were incomplete and confusing. He contends that the trial court erred by not instructing the jury that the offense includes not merely exerting control of another's property with the purpose to deprive the owner of the property, but that the control so exerted was without consent of the owner or his designee.
{¶ 31} The error assigned seems to go to Mr. Cochran's conviction for petty theft, not his various theft convictions. The trial court instructed on petty theft first, theft thereafter. The petty theft instruction does not include the proviso that the control sought to be exerted over another's property was without that person's consent. The theft instruction does. While mindful that jury instructions must be construed as a whole, Wojtkiewicz at ¶ 28, the concepts of petty theft and theft as given by the trial court are sufficiently different that it may be said an essential element of the offense was omitted from the instruction on petty theft. Reversal seems in ordеr. Cf.Wamsley, at ¶ 55.
{¶ 32} Insofar as it relates to his convictions for petty theft, the fifth assignment of error has merit.
{¶ 33} By his sixth assignment of error, Mr. Cochran asserts that the trial court was required to give a jury instruction on burglary of the third degree, R.C.
{¶ 34} "The test to be applied when determining if a charge or instructions should be given on a lesser included offense is whether the jury could find against the state on an element of the crime charged, yet find for the state on the remaining elements which would be sufficient to sustain a conviction on a lesser included offense. If the jury can reasonably find that the state failed to prove one element of the charged offense beyond a reasonable doubt, thus sustaining a conviction on a lesser included offense, a charge on the lesser included offense is required. However, `if the jury could not reasonably find against the state on an element of the crime, then a charge on a lesser-included offense is not only not required but is also improper.' * * * `A criminal defendant is entitled to a lesser-included-offense instruction, however, only where the evidence warrants it.' * * *[.]"State v. Houseman (1990),
{¶ 35} Second degree burglary does not require that a person (other than an accomplice), actually be present when the offense occurs — only a likelihood of their presence is required. State v. Cantin (1999),
{¶ 36} However, the only testimony regarding the whereabouts of Laura Dietrich on the day her home was burglarized was provided by Mr. Cohran's alleged accomplice, Mr. Laughery. He testified they inquired of Ms. Dietrich whether they could bring children to fish in a pond on her property; and, that she told him shе would be gone the following day. The burglary took place then. There is no evidence in the record there was any likelihood, from Ms. Dietrich's known schedule or intentions, that anyone would be present when the burglary occurred. Thus, regarding the Dietrich burglary, a jury could have reasonably found against the state on one element of second degree burglary, and still have found against Mr. Cochran for third degree burglary. See, e.g.,Cantin at 812-814.
{¶ 37} The sixth assignment of error has merit regarding Mr. Cochran's conviction for the Dietrich burglary, and fails regarding each other count of burglary for which he was convicted.
{¶ 38} By his seventh assignment of error, Mr. Cochran asserts that the trial court was required to instruct the jury that his alleged accomplices' guilty pleas could not be considered evidence of his guilt. The state counters that no objection to the trial court's instructions regarding accomplices, and the quality of their evidence, was made at trial, waiving all but plain error in the instructions given. It notes the trial court advised the jury to view the testimony of Mr. Laughery and Mr. Vecchio cautiously, and with suspicion. It notes that Mr. Cochran, himself, introduced the plea agreements into evidence, and asserts that any error by the trial court was invited, and thus not appealable.
{¶ 39} The state's arguments are persuasive. In particular, the trial court admonished the jury on three separate occasions that it must view the testimony of Mr. Cochran's alleged accomplices with great caution and suspicion. Viewing the jury charge as a whole, we find this was all that was required.
{¶ 40} The seventh assignment of error lacks merit.
{¶ 41} By his eighth assignment of error, Mr. Cochran seems to attack the sufficiency of the evidence underlying his convictions for second degree burglary. Once again, he relies on the testimony of his alleged accomplice, Mr. Laughery, that the burglaries were planned for when the homeowners were out, to show the state could not prove that element of the offense requiring the likely presence of a non-accomplice in the burglarized structure.
{¶ 42} "A sufficiency of the evidence argument challenges whether the state has presented evidence for each element of the charged offense. The test for sufficiency of the evidence is whether, after viewing the probative evidence and the inferences drawn from it, in a light most favorable to the prosecution, any rational trier of fact could find all elements of the charged offense proven beyond reasonable doubt."State v. Barno 11th Dist. No. 2000-P-0100, (Sept. 21, 2001),
{¶ 43} Applying these standards to the record, it is clear the state carried its burden on four of the five burglary counts. Regarding secоnd degree burglary, R.C.
{¶ 44} "(A) No person, by force, stealth, or deception, shall do any of the following:
{¶ 45} "* * *
{¶ 46} "(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense * * *[.]"
{¶ 47} The testimony of Mr. Cochran's аlleged accomplices, with that of the homeowners who testified, and the recovered items from their homes, clearly established that in four of the cases, the cohorts entered homes, or their appurtenant garages or sheds, without permission, and stole items, when the homeowners were likely to be present. This is second degree burglary.
{¶ 48} However, for the same reasons as set forth under the sixth assignment of error, the second degree burglary count relating to Laura Dietrich's home cannot stand. The state failed to prоvide sufficient evidence that she was likely to be present at the time of the offense.
{¶ 49} Solely as it relates to Mr. Cochran's conviction for second degree burglary of Ms. Dietrich's home, the eighth assignment of error has merit.
{¶ 50} By his ninth assignment of error, Mr. Cochran asserts the trial court erred in giving him the maximum sentence for second degree burglary — eight years. First, he argues the trial court misapplied R.C.
{¶ 51} This argument fails. Mr. Cochran received eight year (concurrent) sentences on three of the burglaries, including that of Ms. Dietrich's home. As noted previously, the state met its burden of proof on every element of second degree burglary on each of the burglary counts for which Mr. Cochran was convicted, except the Dietrich burglary. The evidence simply does not support Mr. Cochran's contention that his conduct was less serious, because it constituted a lesser degree of the offense charged.
{¶ 52} Under his ninth assignment of error, Mr. Cochran also alleges violation of his Sixth Amendment rights under State v. Foster,
{¶ 53} This argument fails. Mr. Cochran's sentencing hearing occurred March 1, 2006; the judgment entry of conviction was filed March 9, 2006. This is after the ruling in Foster was announced. Thus, this case does not require automatic vacation of the sentences, and remand, as the matter was not on direct review at the time. Cf. Id. at ¶ 103-104. There is nothing in the judgment entry of conviction indicating the trial court applied R.C.
{¶ 54} The ninth assignment of error lacks merit.
{¶ 55} For the reasons stated in this opinion, Mr. Cochran's conviction and sentence on the Dietrich burglary, specifically count ten, is reversed, as are his two convictions for petty theft, cоunt two and amended count four. Otherwise, the judgment of the Geauga County Court of Common Pleas is affirmed. The judgment of the trial court is affirmed in part and reversed in part.
CYNTHIA WESTCOTT RICE, J., concurs,
WILLIAM M. O'NEILL, J., dissents with Dissenting Opinion.
Notes
Dissenting Opinion
{¶ 56} I must respectfully dissent, for I believe the majority erroneously ignores the prohibition against hearsay testimony in a criminal proceeding.
{¶ 57} In this matter, testimony of multiple witnesses was presented not once, but twice. First the detective described to the jury what he had heard from witnesses about the guilt of the defendant, and, then, those same witnesses came into to court to verify what the detective said they had said!
{¶ 58} The analysis begins with the definition of hearsay, and its potential for harm. As stated by the Supreme Court of Ohio:
{¶ 59} "Evid.R. 801(C) defines `hearsay' as `a stаtement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' It is axiomatic that hearsay evidence is inadmissible unless it falls within the specific hearsay exceptions enumerated in the Rules of Evidence."3
{¶ 60} It is clear that when a police detective relates to a jury that both victims and accomplices have told him that the defendant committed the crimes charged that evidence is being introduced to prove the truth of the matter asserted.4 There are no hearsay exceptions to permit such an exercise.
{¶ 61} The majority suggests that since the same witnesses were later subject to cross-examination that the harm, if any, has been corrected. I disagree. In essence, the detective is vouching for the veracity of the subsequent witnesses by demonstrating that their stories have not waivered.
{¶ 62} The proper standard to be applied in this analysis "'"is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction."'"5 The Supreme Court of Ohio has stated that, in order to be harmless, the error must be harmless beyond a reasonable doubt:
{¶ 63} "Under the court's test in Chapman,6 in order to sustain a conviction the reviewing court must be able to declare a belief that the error was harmless beyond a reasonable doubt. There must be other overwhelming evidence of guilt."7
{¶ 64} The Supreme Court of Ohio has also held that an "[e]rror in the admission of evidence is harmless if there is no reasonable possibility that the evidence may have contributed to the accused's conviction."8
{¶ 65} While I agree with the majority that the properly admitted evidencе in this matter was overwhelming in favor of the convictions, I simply cannot agree that there was no possibility that the impermissible evidence "contributed" to the result. As such, there has been a violation of the Ohio Rules of Evidence, and, thus, a fair trial has been denied.
{¶ 66} I would reverse the matter with the clear mandate that witnesses are not permitted to testify as to what other witnesses have said while not under oath. The fact that they repeat their version of events under oath at a subsequent proceeding does not correct the wholesale violation of the hearsay rule that occurred in this matter. The prejudice to the defendant is apparent on its face.