STATE OF OHIO, PLAINTIFF-APPELLEE, v. JEFFREY B. DAHMS, DEFENDANT-APPELLANT.
CASE NO. 13-16-16
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
June 12, 2017
[Cite as State v. Dahms, 2017-Ohio-4221.]
Appeal from Seneca County Common Pleas Court
Trial Court No. 15-CR-0163
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: June 12, 2017
APPEARANCES:
Jennifer Kahler for Appellant
Stephanie J. Reed for Appellee
{1} Defendant-appellant, Jeffrey B. Dahms (“Dahms“), appeals the May 6, 2016 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm in part, and reverse in part.
{2} This case stems from a break-in at a Subway restaurant located in Fostoria, Ohio around 1:52 a.m. on April 21, 2015 in which an object was thrown through the restaurant‘s window and a cash drawer was stolen. Law enforcement learned from Kira Harrold (“Harrold“), one of Dahms‘s girlfriends, that Dahms was the person who committed the break-in. Around the time of the break-in, Dahms was known to stay at the home of his sister, Teresa Brown (“Teresa“), the home of his friend, Sarah Thornton (“Thornton“) in Findlay, Ohio, or with other friends at Nye‘s Trailer Park in Fostoria, Ohio. The Subway restaurant is located near Nye‘s Trailer Park. After Dahms learned that he was suspected of the break-in, he called Thornton numerous times and wrote her several letters requesting that she provide law enforcement with an alibi for him—namely, to tell law enforcement that Dahms was at her residence the night of April 20-21, 2015. To secure her statement, Dahms not only promised to repay her $500 that Thornton loaned him, but Dahms also threatened to turn Thornton into the Hancock County Metropolitan Housing Authority (“Housing Authority“) for violating the terms of her subsidized-housing lease.
{4} On August 14, 2015, Dahms appeared for arraignment and entered pleas of not guilty. (Doc. No. 7). On October 2, 2015, Dahms filed a motion for relief from “Prejudicial Joinder,” which he withdrew on October 13, 2015. (Doc. Nos. 22, 34). Also on October 13, 2015, Dahms filed a motion to continue trial, which the trial court granted. (Doc. Nos. 35, 37). On November 24, 2015, Dahms filed a motion for “Supplemental Discovery” requesting an evidentiary hearing. (Doc. No. 43). On November 30, 2015, Dahms filed a motion to continue trial, which the trial court granted. (Doc. Nos. 45, 47).
{5} That same day, Dahms filed a motion for “a Pre-Trial Copy of the Transcript of the Grand Jury Proceedings.” (Doc. No. 44). On December 3, 2015, the State filed a memorandum in opposition to Dahms‘s motion for “a Pre-Trial Copy of the Transcript of the Grand Jury Proceedings.” (Doc. No. 48). After a
{6} The case proceeded to a jury trial on April 26-29, 2016. (Doc. No. 85). The jury found Dahms guilty as to the counts in the indictment. (Doc. Nos. 85, 86); (Apr. 30, 2016 Tr. at 2-3). On May 6, 2016, the trial court sentenced Dahms to 12 months in prison on Count One, 36 months in prison on Count Two, 36 months in prison on Count Three, and 18 months in prison on Count Four, and ordered that Dahms serve the terms consecutively for an aggregate sentence of 102 months. (Doc. No. 89).
{7} On May 25, 2016, Dahms filed his notice of appeal. (Doc. No. 93). He raises five assignments of error for our review. For ease of our discussion, we will address Dahms‘s first and second assignments of error together, followed by his third, fourth, and fifth assignments of error.
Assignment of Error No. I
The State failed to support Appellant‘s convictions for Bribery and Intimidation of a Witness with legally sufficient evidence.
Appellant‘s convictions fell against the manifest weight of the evidence.
{8} In his first assignment of error, Dahms argues that his bribery and intimidation-of-a-witness-in-a-criminal-case convictions are based on insufficient evidence.1 In his second assignment of error, Dahms argues that his bribery, intimidation-of-a-witness-in-a-criminal-case, breaking-and-entering, and attempted-complicity-to-tampering-with-evidence convictions are against the manifest weight of the evidence.
{9} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). As such, we address each legal concept individually.
{10} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction 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.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most
{11} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of 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 ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
{12} At trial, the State offered the testimony of Kira, who testified that she was sleeping at her sister‘s, Kady Harrold (“Kady“), house the night of April 20-21, 2015. (Apr. 26, 2016 Tr., Vol. II, at 160-161). According to Kira, she was woken early that morning by Dahms, who was her boyfriend at the time. (Id. at 161). Kira testified that Dahms told her that “he threw a brick through Subway‘s window,” and that Dahms was holding “a wad of cash and a bag full of change.” (Id. at 164-165). Kira stated that Dahms also told Kady and Kady‘s boyfriend, Andy, about what he had done. (Id. at 165).
{13} According to Kira, she revealed to law enforcement that Dahms was the person who committed the Subway restaurant break-in because she was mad at him since they “had gotten into it and [she] went to the hospital and spoke with the officer. And it was just, the truth needed to come out. [Dahms] should be punished for what he done [sic].” (Id. at 166-167). Kira provided law enforcement with a written statement reflecting that Dahms committed the Subway restaurant break-in. (Id. at 167). Kira testified that Dahms called her “a snitch.” (Id.). She further testified that she received phone calls and letters from Dahms asking her to recant her statement to law enforcement. (Id. at 169-170). (See also State‘s Exs. 8, 9).
{14} On cross-examination, Kira testified that she alleged in February 2015 to law enforcement that Dahms assaulted her. (Id. at 178). Kira testified that she went to the hospital in April 2015 after Dahms “drug [her] down the street with a car” but did not pursue charges against Dahms. (Id. at 180-181).
{15} On re-direct examination, Kira testified that she knew specific details regarding the Subway restaurant break-in, which she reported to Detective Shilo Frankart (“Detective Frankart“) of the Fostoria Police Department, because Dahms “told” her those details. (Id. at 182-183).
{16} On re-cross examination, Kira testified that she could have learned those details from someone other than Dahms, but maintained that she heard the details of the break-in from him. (Id. at 183-184).
{17} Next, Kady testified that Dahms told her that “he broke into Subway.” (Id. at 184-185). She testified that Dahms was at her house “shortly after” the break-in. (Id. at 185). On cross-examination, Kady clarified that Dahms confessed about
{18} Richard Ray Evans (“Evans“) testified that he was with Dahms before the break-in and recalled Dahms asking him if he wanted to “hit a lick,” meaning “steal some money.” (Id. at 194-196). Evans declined Dahms‘s offer, Dahms left, and Evans again saw Dahms at 1:30 in the morning “[c]arrying a safe box.” (Id. at 196-197). According to Evans, Dahms told him that he got the “safe box” from the Subway restaurant. (Id. at 197).
{19} Evans testified that he recalled a “gray with a blue skull” hooded sweatshirt belonging to Dahms in Dahms‘s vehicle, which Evans took possession of after Dahms was arrested. (Id. at 199). According to Evans, he “wore [the hooded sweatshirt] to the mud bogs one day” and that it is “still out at the mud bogs.” (Id.). Evans testified that Dahms told him where he hid the “safe box” at Nye‘s Trailer Park. (Id. at 206).
{20} Evans identified State‘s Exhibit 10 as recordings of phone calls that he received from Dahms, which were played for the jury. (Id. at 200-204); (State‘s Ex. 10). In those phone calls, Dahms can be heard telling Evans to “take that trash out and fucking get rid of all the junk in my room,” “get rid of that trash,” and to “[g]et rid of that, bro.” (Apr. 26, 2016 Tr., Vol. II, at 202-204); (State‘s Ex. 10). According to Evans, Dahms was referring to “[t]he safe and then maybe whatever‘s
{21} On cross-examination, Evans testified that he did not report to Detective Frankart that he knew the location of the “safe box.” (Id. at 209). Regarding the hooded sweatshirt, Evans testified that he could not provide it to Detective Frankart. (Id. at 211-212). Although Evans did not see the surveillance video, he knew what hooded sweatshirt Detective Frankart was searching for because Evans “watched [Dahms] walk down the street in the middle of the neighborhood with the safe box and the hoody on” after he committed the break-in. (Id. at 221).
{22} On re-direct examination, Evans provided the following clarification regarding the hooded sweatshirt:
Well, when you go to the mud bogs, it was chilly out, so I had [the hooded sweatshirt] on. Jumped out of the truck in probably 3 or 4 foot [sic] of mud. Once the hoody was soaked with mud, it was cold, because it was sort of, like, rainy out.
I took it off. My buddy got stuck on his four-wheeler. We didn‘t have no [sic] rope or no [sic] chain, so I‘m like, well, hell, tie this hoody up to it and try to pull him out. It was a four-wheeler, not a truck, an ATV.
So we tied the hoody to the bumper of the truck and the ATV ripped it clean in half when we tried to pull it out, so we just left [the hooded sweatshirt] there.
(Id. at 223). According to Evans, he did not provide Detective Frankart with the location of the safe box because of his close friendship with Dahms. (Id. at 224).
{23} The State next offered the testimony of Thornton who testified that she saw Dahms at her residence “about 1:00 in the afternoon” on April 20, 2015. (Apr. 27, 2016 Tr., Vol. I, at 4-5). According to Thornton, Dahms was at her residence the next morning when she woke around 7:50 a.m. (Id. at 5-6). Thornton went to bed the previous evening between 11:00 p.m. and 1:00 a.m. (Id. at 6-7). Thornton received phone calls and letters from Dahms since that day. (Id. at 7). (See State‘s Exs. 11, 12, 13, 14, 15).
{24} Thornton identified State‘s Exhibit 15 as a recording of a phone call from Dahms to Thornton, which was played for the jury. (April 27, 2016 Tr., Vol. I, at 7-8). In that recording, Dahms can be heard telling Thornton about the Subway break-in and stating,
Just remember that if anybody asks you, because it happened Monday the 20th. * * * But I stayed at your house on the 20th okay? * * * I stayed at your house on the 20th, Monday the 20th. All right?
{25} Thornton identified State‘s Exhibits 11, 12, 13, and 14 as the letters she received from Dahms. (Id. at 24). In one of the letters, Dahms “mentions giving [Thornton] $500 for a birthday present for [Thornton‘s adult son].” (Id. at 25). Thornton interpreted that statement to mean that Dahms would repay her the money that he owed her if she wrote the statement. (Id.). Dahms confesses in that letter that he owed Thornton money, and Thornton testified that Dahms owed her “about $400.” (Id.). Thornton testified that Dahms never gave her son money for his birthday before. (Id.).
{26} In another letter, Dahms tells Thornton “that his sister is going to call [the Housing Authority].” (Id. at 26). Thornton interpreted that statement to mean that she needed to “[w]rite the statement” to prevent Teresa from calling the Housing Authority, which would result in Thornton losing her “subsidized housing” assistance. (Id.).
{28} Thornton testified that Dahms‘s bedroom was located on the second floor of her two-story apartment. (Id. at 42). She stated that she sleeps in a chair in the living-room portion of her apartment, which is located within hearing distance of the front and back doors to the apartment. (Id. at 43-44). She testified that she did not hear Dahms leave the apartment after she went to sleep on April 20, 2015. (Id. at 44). According to Thornton, when she woke at 7:50 a.m. on April 21, 2015, she saw Dahms walking down the stairs. (Id. at 44). The Subway restaurant is approximately 15-20 minutes from Thornton‘s apartment. (Id. at 45). Thornton testified that Dahms did not have a vehicle. (Id.). Thornton was not aware if anyone
{29} The following exchange took place regarding Dahms threatening Thornton:
[Thornton]: I took it as a threat. That‘s why I blocked him. Because he just kept yelling at me. Actually, he called me a B-word and some, you know, some profound language he didn‘t need to use at me and that‘s why I took it as threatening me.
Because you don‘t talk to me like that, especially you know, when I give you a place to live and, you know, I‘ve been your friend for so many years. But the way - - he was yelling and screaming at me all the time and it as, like, what do you want me to do? There ain‘t [sic] really much I can do.
You know, and then he just kept yelling at me. That‘s why he got blocked. He wouldn‘t leave me alone.
[Dahms‘s counsel]: Because he wanted you to give that statement and you decided you wouldn‘t give that statement - -
[Thornton]: Right.
(Id. at 48). The defense then played for the jury another phone call from Dahms to Thornton. (Id. at 50); (State‘s Ex. 15). In that recording, Dahms can be heard saying to Thornton,
Listen. Sunday, Monday, and Tuesday night, I was there. And then Wednesday is when I went to Fostoria. I went to Fostoria Wednesday night, stayed overnight with Kira, and then came back on Thursday and started my job. Because Wednesday night is when I got my car.
And I want you to tell him that * * * Tell him that you‘ll go to court for me.
(Apr. 27, 2016 Tr., Vol. I, at 52). Thornton testified that she was concerned that she would be in trouble if she were to provide a statement to law enforcement. (Id. at 63).
{30} Rickey Perrin (“Perrin“) testified on behalf of the State. (Id. at 63). In exchange for his testimony, Perrin received a favorable sentence for his drug-related conviction. (Id. at 64). Perrin testified that he was incarcerated with Dahms and that Dahms confessed to smashing the window of the Subway restaurant and stealing a cash box. (Id. at 65-67). Regarding Thornton, Perrin testified that Dahms told him
{31} On cross-examination, although Perrin was in the courtroom at the time of Dahms‘s evidentiary hearing, Perrin testified that he did not remember any of the evidence presented during Dahms‘s hearing because he “was trying to get out of jail that day, too, so [he] didn‘t pay no [sic] attention to what was going on with [Dahms].” (Id. at 70). However, on re-cross examination, Perrin recalled that Dahms‘s evidentiary hearing lasted “for a long time.” (Id. at 85).
{32} Detective Frankart testified that he investigated the Subway restaurant break-in. (Apr. 27, 2016 Tr., Vol. II, at 90-92). According to Detective Frankart, Kira reported to law enforcement that Dahms was the person who broke into the Subway restaurant. (Id. at 97). Kira reported to law enforcement that Dahms confessed to her to throwing a brick through the Subway restaurant‘s window and stealing the cash drawer—facts which were not known to the public. (Id. at 98). Kira reported that she saw Dahms the night of the break-in and saw that he had $300, which matched the amount of money stolen from the Subway restaurant. (Id. at 97-98).
Because when they take this stuff to the grand jury * * * I need you to have that statement in with that stuff so they can say, “Well, the guy, this lady‘s claiming that he stayed overnight.”
Do you know what I mean? And [Thornton] know [sic] that I stayed there.
(Apr. 27, 2016 Tr., Vol. II, at 120); (State‘s Ex. 20). Later in the conversation, Dahms can be heard instructing Teresa, “All I wanted you to do was pick up the * * * statement [from Thornton] that I wrote out and had notarized.” (Apr. 27, 2016 Tr., Vol. II, at 125); (State‘s Ex. 20).
{34} Detective Frankart testified that Dahms identified Thornton as an alibi witness for the night of the Subway break-in. (Apr. 27, 2016 Tr., Vol. II, at 108). He stated, “During the first interview, she was not a main defense of his. It became as the investigation proceeded, she became a main defense of him, his alibi for the night.” (Id. at 109). Detective Frankart identified State‘s Exhibits 11, 12, 13, and
“Sarah, my sister is mad and saying she‘s going to call the lady at your office and call [the Housing Authority] on you. She is mad because I stayed that night but now you won‘t help me.”
***
“I need you to write that statement, Sarah. If you don‘t write it, my lawyer said they are going to charge me. If that happens, then he‘s going to have to make you come to court, like, five times and then you also have to come to trial. And if you don‘t show up to court all those times, the judge will have you arrested.
Do you have a ride to court? Hell no, you don‘t. It would be a lot better if you would just write the statement and turn it in, because then I won‘t even get charged and nobody even has to go to court.
Teresa. Teresa told me if you turn your back on me, then she will call [the Housing Authority] on you and tell them I lived with you and you will lose your [housing assistance] because she is mad that you don‘t answer the phone.
I am supposed to start school in August. If they charge me, I won‘t be able to. I will get $3,000 in loans, and I told you I will give you $500 for a late birthday present for [Thornton‘s adult son].
P.S. Please do this. My sister‘s mad and wants to call [the Housing Authority].”
(Apr. 27, 2016 Tr., Vol. II, at 151-52); (State‘s Exs. 12, 13).
{35} Detective Frankart identified State‘s Exhibit 17 as the surveillance video depicting the break-in of the Subway restaurant, which was subsequently played for the jury. (Apr. 27, 2016 Tr., Vol. II, at 94); (State‘s Ex. 17). Although the individual seen in the surveillance video is unidentifiable from the video, Detective Frankart testified that Dahms matches the build of the person seen in the video. (Apr. 27, 2016 Tr., Vol. II, at 96-97, 145). Detective Frankart testified that the surveillance video depicts only one perpetrator. (Id. at 101). He further testified that his investigation revealed that Dahms was receiving transportation from others because his vehicle was impounded prior to the Subway restaurant break-in. (Id. at 113). Detective Frankart testified that Evans told him that Dahms stole “over $300” from the Subway restaurant, and that Evans told Detective Frankart where Dahms hid the safe box. (Id. at 102). Detective Frankart found the safe box where Evans told him Dahms hid it. (Id. at 102-103). Regarding the hooded sweatshirt, Detective Frankart testified, “Through my investigation, I found out that, according to Teresa
{36} Detective Frankart identified State‘s Exhibit 7 as an extraction report depicting Facebook messages between Dahms and Kira. (Id. at 154). In one message from Dahms to Kira on April 20, 2015 at 4:39 p.m., Dahms informs Kira that he “will be there in a bit“—meaning that he would be at Nye‘s Trailer Park in a bit. (Id. at 156); (State‘s Ex. 7).
{37} Detective Frankart testified that Dahms claimed that another individual, Kyle Yonikuss (“Yonikuss“), was the person who committed the Subway restaurant break-in. (Id. at 157). Detective Frankart investigated Dahms‘s claim and learned from another law-enforcement officer that Yonikuss “had a warrant for a theft” and that Yonikuss was believed to have “left town and went to Wyoming.” (Id. at 157-158). Through his investigation, Detective Frankart did not find any evidence that Dahms accused Yonikuss of the break-in to Kira, or any communications between Kira and Yonikuss, but learned from Evans that Yonikuss did not commit the break-in. (Id. at 158). Evans confirmed that Yonikuss “went to Wyoming prior to the break-in.” (Id.). According to Detective Frankart, Dahms blamed the break-in on Yonikuss because Yonikuss previously blamed a theft on Dahms for which Dahms was criminally charged. (Id. at 159).
{39} On cross-examination, Detective Frankart testified that Thornton confirmed that Dahms was at her residence when she went to sleep and when she woke. (Apr. 29, 2016 Tr., Vol. I, at 115). Thornton further confirmed that she sleeps by the front door but did not hear Dahms leave or return the night of April 20-21, 2015. (Id.). Detective Frankart testified that he did not find any messages on Dahms‘s phone seeking a ride from Findlay to Fostoria the night of the Subway restaurant break-in. (Apr. 27, 2016 Tr., Vol. II, at 202).
{40} Detective Frankart read for the jury a portion of his investigative statement,
“Through my investigation, I found that Sarah Thornton is a close friend of [Dahms‘s], who he has known for approximately 13 years. She is also someone [Dahms] feels is easily manipulated, even [“]retarded” * * * as he referenced her in several telephone calls to his sister, Teresa Brown.”
didn‘t tell [him] to talk to [Thornton]. He said he didn‘t think she‘d remember anything. And then as soon as [Detective Frankart] started listening to jail phone calls, he was on the phone talking to [Thornton], “Remember, I was there from April 17th on.” He was setting it up.
(Id. at 155). Detective Frankart read another portion of one of Dahms‘s letters to Thornton for the jury:
“All you need to do is tell the truth. I don‘t care how you write it or what you say. Just tell them the truth: that I was at your house and stayed there the night of Monday, April 20th, and had a job orientation the next morning at 8:00 a.m. Sarah, please.”
* * *
“I did not do [sic]. Please. Also, tell them how Kira lies to the cops. She lied in February to cause me trouble to remember[?] Listen, please. I need you and you know I would help you.”
(Id. at 132). (See also State‘s Ex. 13).
{42} He further testified that Dahms told him that “Kira has tried to cause trouble with the police for [Dahms]” in the past. (Apr. 27, 2016 Tr., Vol. II, at 210-211). Detective Frankart testified that Evans or Andy told him that it is “a pretty good assumption” that Kira would lie to get Dahms in trouble. (Id. at 212-213). Regarding the hooded sweatshirt, he testified that Evans was in possession of the hooded sweatshirt, but told him that it was destroyed after being used to pull a four-wheeler out with it, and [Evans] ripped it in half and left it where it laid.” (Apr. 29, 2016 Tr., Vol. I, at 119).
{43} On re-direct examination, Detective Frankart testified that his investigation revealed that Dahms told Kira, Kady, Evans, Andy, and Perrin that he committed the Subway restaurant break-in. (Id. at 165). In the audio recordings of Dahms‘s phone calls, which were played for the jury, Dahms did not accuse Yonikuss of the break-in. (Id. at 166). Dahms was the only person who claimed
{44} Detective Frankart testified that Kira‘s story did not change throughout his investigation. (Id. at 167). Regarding the video recording of Kira‘s interview, which was played for the jury, Kira can be heard telling Detective Frankart that the break-in occurred April 19-20, 2015. (Id. at 167). However, Detective Frankart testified that Kira later called him to tell him that she was mistaken about the date of the break-in and “corrected” her statement. (Id. at 168-169). Detective Frankart testified that Kira‘s phone call correcting her statement made her statement “even more significant.” (Id. at 169). He testified that, in addition to telling him what Dahms told Kira about the break-in, Kira reported that she observed Dahms “with a wad of cash, change, and a ‘Thank You’ bag. And she knew it was over $300, because [Dahms] counted it in front of her.” (Id. at 171). Although Evans and Andy indicated that Kira might lie, Evans and Andy confirmed Kira‘s story that Dahms committed the break-in. (Id. at 171-172).
{45} On re-cross examination, Detective Frankart testified that, because Kira, Kady, Andy, and Evans live within close proximity to each other at Nye‘s Trailer Park, they could have colluded to blame the break-in on Dahms. (Id. at 178). However, he testified that Andy and Evans‘s collusion did not “make sense, because Andy and [Evans] really did not want to testify against [Dahms]. Neither wrote a
{46} After the State presented its witnesses, it moved to admit its exhibits. (Apr. 29, 2016 Tr., Vol. II, at 184). Dahms objected to State‘s Exhibits 7 and 20, which were admitted over Dahms‘s objections. (Id. at 184-185). The remainder of the State‘s exhibits were admitted without objection, and the State rested. (Id. at 186). Next, Dahms made a Crim.R. 29(A) motion, which the trial court denied. (Id. at 186-188).
{47} The defense called five witnesses. As one of its witnesses, the defense called Teresa to testify. (Apr. 29, 2016 Tr., Vol. II, at 256). Teresa testified that she spoke with Thornton “three or four times a day.” (Id. at 291). According to Teresa, Thornton was “adamant” that Dahms stayed at her house the night of April 20-21, 2015. (Id. at 292-293).
{48} Teresa testified that Dahms “wanted [her] to go help [Thornton] do [a statement for law enforcement] because [Thornton] can‘t - she can‘t write. She can‘t spell.” (Id. at 264). Teresa testified that Dahms “just wanted [her] to go over and let [Thornton] say what she wanted [her] to write, because she can‘t spell or write,” and that he wanted Thornton to tell the truth. (Id. at 276-277). Teresa did not help Thornton write that statement because Thornton
(Id. at 264). She further testified,
I never really refused to help [Thornton] write her statement. [Thornton] just kind of flim-flammed [sic] around, like, “Yeah, I‘m going to do it. No, I don‘t want to do it. Yeah, I‘m going to do it. Well, if they need me in court, I‘ll just go to court for him.”
I mean, I more or less had to bribe her in the form of two bags of groceries to go pick up [Dahms‘s] clothes and stuff. And there, I had to leave a message to tell her that I had groceries for her so she would even call me back.
(Id. at 276). Teresa testified that Dahms owed Thornton “close to $500” because Thornton loaned him money to pay for his court fines. (Id. at 293).
{49} Teresa testified that she wrote to Dahms and told him that she “was going to call [the Housing Authority] on [Thornton]” to report her for allowing Dahms to stay with her so that Thornton would lose her housing assistance. (Id. at 290). As a result, Dahms wrote a letter to Thornton telling her that Teresa was going
{50} On cross-examination, the State played for the jury an audio recording of a June 30, 2015 conversation between Teresa and Detective Frankart. (Id. at 302). In that recording, Teresa can be heard telling Detective Frankart that Thornton called her, after receiving Dahms‘s letter threating to report Thornton to the Housing Authority, to tell Teresa that she received “a bad letter” from Dahms. (Id. at 309). Also in that conversation, Teresa can be heard denying to Detective Frankart that she threatened to report Thornton to the Housing Authority. (Id. at 304). Further, Teresa can be heard telling Detective Frankart that she received a letter from Dahms instructing her to write a statement for Thornton and instructing her to begin the statement by writing, “my name is Sarah -- whatever her name, Thorn --.” (Id. at 324-325). She can be heard explaining that Dahms wanted her to lie for him and “say [she] seen [sic] [him when she] didn‘t see him” because she doesn‘t “know where he was that night.” (Id. at 336). She continued,
And just like me [sic] and [Thornton] talked, well, if this goes all the way to trial and [Thornton] knows something about it, don‘t write a statement. Let them subpoena you in. Then you‘re going to be on the bench. And if you lie, you lie. * * * Then you‘re in trouble.”
{51} Dahms testified in his defense. (Apr. 29, 2016 Tr., Vol. III, at 365). He testified that “slept at [Thornton‘s] house that night” and “woke up at [Thornton‘s] house that morning.” (Id. at 378). Further, he testified that he did not go to Fostoria on the night of April 20-21, 2015. (Id.).
{52} Regarding Thornton, he testified that he “did not bribe [Thornton]. [He] owed [Thornton] money. [He] owed [Thornton] a lot of money.” (Id. at 385). Dahms identified State‘s Exhibit 13 as a letter he wrote to Thornton, and explained that he wrote the letter because he “wanted her to write a statement for [him]. All though the letter, [he] asked her to tell the truth. That‘s all [he] wanted [Thornton] to do from the start.” (Id. at 386). According to Dahms, he “[n]ever asked her to lie for [him]. There‘s not one mention in any of [his] letters where [he] ever asked her to lie.” (Id.). To bolster his testimony, Dahms read from the letter:
It says, “Listen, all I want you to do is tell the truth. I need you to write a statement, Sarah. If you don‘t write it, my lawyer said that they are going to charge me.” * * * I am supposed to start school again in August. If they charge me, I won‘t be able to. I will get $3,000 in
loans, and I told you I would give you $500 for a late birthday present for [Thornton‘s adult son]”
(Id. at 386-387).
{53} According to Dahms, he owed Thornton money because she was “giving [him] money to pay court fines.” (Id. at 387). Further, he testified that he said in his letter that the $500 would be a “late birthday present” for Thornton‘s adult son because the money that Thornton loaned to him was money that Thornton planned to spend on her son‘s birthday, and Thornton told Dahms that he needed to return that money to her so she could spend it for the birthday. (Id.). Dahms clarified that the letter states, “‘I told you I would give you $500,’ It doesn‘t say, ‘I will give you $500.‘” (Id.). Dahms testified that Thornton “blocked [his] calls because [he] was calling her so much * * * [but he] wanted [Thornton] to tell the truth[, he] never asked [Thornton] to lie.” (Id. at 390). Dahms thought that Thornton blocked his calls because she wanted the money that he owed her, not because he was intimidating her. (Id.).
{54} On cross-examination, the State played for the jury a video recording of Detective Frankart‘s interview of another girlfriend of Dahms‘s, Stephanie Thompson (“Thompson“), whom Dahms claims was also with him the night of April 20-21, 2015, along with another person named “Jade.” (Id. at 408-409). In the video recording, Thompson can be heard telling Detective Frankart that she
{55} Nevertheless, Dahms testified that he did not tell Detective Frankart that Thompson or “Jade” could provide an alibi for him for the night of April 20-
{56} Thereafter, the defense moved to admit its exhibits, which were admitted without objection, and rested. (Id. at 446-447). The State did not present any witnesses on rebuttal. (Id. at 447). Dahms renewed his
{57} We first review the sufficiency of the evidence supporting Dahms‘s bribery and intimidation-of-a-witness-in-a-criminal-case convictions. State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). We will begin by addressing his sufficiency-of-the-evidence argument as it relates to his bribery conviction, then we will address his sufficiency-of-the-evidence argument as it relates to his intimidation-of-a-witness-in-a-criminal-case conviction.
{58} The criminal offense of bribery is codified in
(C) No person, with purpose to corrupt a witness or improperly to influence a witness with respect to the witness‘s testimony in an official proceeding, either before or after the witness is subpoenaed or sworn, shall promise, offer, or give the witness or another person any valuable thing or valuable benefit.
{59} Under his first assignment of error, Dahms specifically argues that there is insufficient evidence that he committed bribery because there is insufficient evidence that he: (1) “intended to corrupt or otherwise improperly influence [Thornton‘s] testimony;” (2) offered Thornton a valuable thing or benefit; or (3) influenced Thornton‘s testimony in an official proceeding. (Appellant‘s Brief at 18).
{60} First, we address whether the State presented sufficient evidence that Dahms intended to (1) corrupt the witness or (2) improperly influence her with respect to her testimony in an official proceeding either before or after she was subpoenaed or sworn. See State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, ¶ 56, citing
{61} “[O]ne way to commit bribery under
{62} Dahms avers that he cannot be convicted of bribery if he merely encouraged Thornton to “tell the truth.” Dahms‘s argument is erroneous. Evidence of a defendant expressly asking a witness to change their testimony is not required for the “corrupt” form of bribery. Marshall at ¶ 61. Indeed, the State presented sufficient evidence that Dahms intended to corrupt Thornton. The State presented evidence of letters and phone calls from Dahms to Thornton in which he repeatedly asks Thornton to provide law enforcement a statement indicating that Dahms stayed at her residence on April 20-21, 2015. Thornton did not want to make a statement because she did not want to be involved and because she did not want to get in trouble. Yet, to secure her statement, Dahms offered to repay Thornton the money that he owed her.
{65} As such, we conclude that Dahms‘s manipulation or coaching of Thornton to provide law enforcement with his version of the truth coupled with his promise to repay Thornton the money that he owed her in exchange for her statement is sufficient evidence that Dahms acted with purpose to corrupt Thornton. See Marshall, 2015-Ohio-2511, at ¶ 65 (“A reasonable jury could also conclude that Marshall acted with purpose to corrupt when he sought to influence or change M.T.‘s likely position at Castro‘s sentencing by offering her money.“).
{66} Second, Dahms argues that there is insufficient evidence that he offered Thornton a valuable thing or benefit because Dahms was merely offering to
{67} Finally, Dahms argues that there is insufficient evidence that he influenced Thornton‘s testimony in an official proceeding because “[m]aking a statement to the police prior to any indictment is not an ‘official proceeding.‘” (Appellant‘s Brief at 19). “[T]here are two distinct ways to commit bribery under statute: (1) offering or giving any valuable thing or benefit with purpose to corrupt a witness; or (2) offering or giving any valuable thing or benefit to improperly influence a witness.” (Emphasis added.) Marshall at ¶ 46. The modifier, “with respect to the witness‘s testimony in an official proceeding” applies only to the
{68} Accordingly, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Dahms committed bribery. As such, Dahms‘s bribery conviction is based on sufficient evidence.
{69} Moving to his intimidation-of-a-witness-in-a-criminal-case conviction, Dahms argues that there is insufficient evidence that: (1) he intimidated a witness in a criminal case because there is insufficient evidence that the witness was a witness as defined by the statute; and (2) he made an unlawful threat.
{70} The criminal offense of intimidation of a witness in a criminal case is codified in
No person, knowingly and by force or by unlawful threat of harm to any person * * * or by unlawful threat to commit any offense or calumny against any person, shall attempt to influence, intimidate, or hinder any of the following persons:
* * *
(2) A witness to a criminal * * * act by reason of the person being a witness to that act.
{71} First, we will address whether the State presented sufficient evidence that Thornton is a witness as defined under the statute. The statute defines a “witness” as “any person who has or claims to have knowledge concerning a fact or facts concerning a criminal * * * act, whether or not criminal * * * charges are actually filed.”
{72} Dahms argues that “Thornton was not a witness to the alleged crime“—that is, that “[s]he had no knowledge of the evens that happened at Subway or [Dahms‘s] alleged involvement in said act.” (Appellant‘s Brief at 19). However, Dahms‘s argument is belied by the fact that he alleged that Thornton was his alibi witness during the time the break-in of the Subway restaurant occurred. Clearly, an alibi witness is a person who has or claims to have knowledge concerning a fact or facts concerning a criminal act—namely, that the accused did not commit the criminal act of which they are accused of committing. See State v. Wallace, 9th Dist. Lorain No. 06CA008889, 2006-Ohio-5819, ¶ 19 (“An alibi witness is defined as ‘[a] witness who testifies that the defendant was in a location other than the scene
{73} The State presented sufficient evidence that Thornton is a witness as defined under
{74} Next, Dahms argues that he cannot be convicted of intimidating a witness in a criminal case because there is insufficient evidence that he made an unlawful threat of harm. “The Supreme Court of Ohio has held that ‘an unlawful threat of harm’ is satisfied only when the very making of the threat is itself unlawful because it violates established criminal or civil law.” State v. Jackson, 12th Dist. Fayette No. CA2011-01-001, 2011-Ohio-5593, ¶ 48, quoting State. v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, ¶ 42. Stated differently, “‘the threat itself, not the threatened conduct, must be unlawful.‘” State v. Khaliq, 5th Dist. Licking No. 15-CA-64, 2016-Ohio-7859, ¶ 27, quoting State v. Yambrisak, 5th Dist. Richland No. 2012-CA-50, 2013-Ohio-1406, ¶ 31, citing Cress at ¶ 38. “An unlawful threat must accordingly connote more than just a threat, i.e. more than just a communication to a person that particular negative consequences will follow should the person not act as the communicator demands.” Jackson at ¶ 48, quoting Cress at ¶ 41. “Thus, the Supreme Court‘s decision in Cress suggests that in order for the state to meet its burden in an
{75} The State presented sufficient evidence that Dahms made an unlawful threat because the State presented sufficient evidence that Dahms committed the predicate offense of coercion in violation of
(A) No person, with purpose to coerce another into taking or refraining from action concerning which the other person has a legal freedom of choice, shall do any of the following:
(1) Threaten to commit any offense;
(2) Utter or threaten any calumny against any person;
(3) Expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule, to damage any person‘s personal or business repute, or to impair any person‘s credit;
(4) Institute or threaten criminal proceedings against any person;
(5) Take, withhold, or threaten to take or withhold official action, or cause or threaten to cause official action to be taken or withheld.
{¶76} Having concluded that Dahms‘s bribery and intimidation-of-a-witness-in-a-criminal-case convictions are based on sufficient evidence, we next address Dahms‘s argument that his bribery, intimidation-of-a-witness-in-a-criminal-case, breaking-and-entering, and complicity-to-tampering-with-evidence convictions are against the manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76.
{¶77} As an initial matter, we note that Dahms does not make any argument under his second assignment of error conveying how his bribery and intimidation-of-a-witness-in-a-criminal-case convictions are against the manifest weight of the evidence. “[A] defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of
{¶78} As we noted above, sufficiency of the evidence and manifest weight of the evidence are different legal concepts. Thompkins, 78 Ohio St.3d at 389. That Dahms incorporated his “arguments made above [under his sufficiency-of-the-evidence assignment of error] for the Bribery and Intimidation of a Witness charges” in his conclusory paragraph under his second assignment of error does not comport with the requirements of
{¶79} However, in the interest of justice, we will address the merits of Dahms‘s arguments. See State v. Thomas, 3d Dist. Mercer No. 10-10-17, 2011-Ohio-4337, ¶ 25. Applying Dahms‘s arguments that he makes in support of his sufficiency-of-the-evidence assignment of error, we conclude that the jury did not clearly lose its way and create such a manifest miscarriage of justice that Dahms‘s bribery and intimidation-of-a-witness-in-a-criminal-case convictions must be reversed and a new trial ordered.
{¶80} Indeed, the evidence that we summarized in our sufficiency-of-the-evidence analyses supporting Dahms‘s bribery and intimidation-of-a-witness-in-a-criminal-case convictions is weightier than the evidence against those convictions. First, regarding Dahms‘s bribery conviction, despite the evidence that Dahms relies on in support of his sufficiency-of-the-evidence argument, the evidence that he committed bribery outweighs any evidence that he did not commit that crime. In his sufficiency-of-the-evidence argument, Dahms points to the evidence that: (1) Thornton would not lie for Dahms; (2) Dahms did not ask Thornton to lie for him; and (3) Dahms was merely promising to repay a loan made to him by Thornton when he promised to pay her $500 for her son‘s birthday. However, that evidence does not outweigh the evidence that Dahms intended to corrupt Thornton.
{¶81} The evidence of Dahms manipulating or coaching Thornton to provide law enforcement with Dahms‘s version of the truth overwhelmingly supports Dahms‘s intent to persuade Thornton to shade or color her testimony in a way that would benefit Dahms. There is ample evidence in the record that Thornton is susceptible to manipulation and has difficulty recalling events—traits that Dahms was aware of and exploited. Further, because we concluded that the promise to repay a loan constitutes the promise of a valuable thing or benefit under
{¶82} Second, Dahms‘s intimidation-of-a-witness-in-a-criminal-case conviction is not against the manifest weight of the evidence. In his sufficiency-of-the-evidence argument, Dahms points to evidence that: (1) Thornton did not witness the Subway restaurant break-in; and (2) Dahms did not make “any threat of harm or calumny against Thornton.” (Appellant‘s Brief at 20). Although Thornton did not witness the Subway restaurant break-in, Dahms alleges that Thornton is his alibi witness for the time at which the Subway restaurant break-in occurred. Stated differently, Dahms alleges that Thornton witnessed that Dahms did not commit the Subway restaurant break-in. As such, because Dahms alleges that Thornton is his
{¶83} Moreover, the evidence that we summarized in our sufficiency-of-the-evidence analysis supporting that Dahms made an unlawful threat is weightier than Dahms‘s contention that he did not threaten Thornton. Dahms erroneously contends that the evidence that he did not unlawfully threaten Thornton outweighs the evidence that he unlawfully threatened Thornton because “reporting Thornton to [the Housing Authority] would have been a truthful statement” since “[t]here is evidence to show that [Dahms] was, in fact, living with Thornton for some time.” (Appellant‘s Brief at 20). Dahms ignores that his threat to cause a report to be made regarding Thornton to the Housing Authority—regardless of its truth—amounted to coercion. Indeed, the evidence that Dahms coerced Thornton is overwhelming. Not only did Dahms include in a letter to Thornton his threat that a report would be made to Housing Authority against Thornton, the State presented evidence that Thornton felt threatened by Dahms to the extent that she blocked him from being able to call her. Further, the State presented evidence that Dahms threatened possible consequences if Thornton did not provide law enforcement with a statement, including that (1) Dahms would be charged with a crime; (2) Thornton would have to appear in court “five times“; and (3) Thornton would be arrested if she did not appear, especially because she does not have transportation to court. For these
{¶84} Moving to Dahms‘s argument that his breaking-and-entering and attempted-complicity-to-tampering-with-evidence convictions are against the manifest weight of the evidence, we conclude that, “[e]ven removing the lens of favorability in favor of the prosecution, through which we examine the sufficiency of the evidence, this is not an exceptional case where the evidence weighs heavily against the convictions.” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33.
{¶85}
{¶86} On appeal, Dahms argues that his breaking-and-entering conviction is against the manifest weight of the evidence because there is no “direct physical evidence” linking Dahms to the Subway restaurant break-in, and the jury lost its way in believing the testimony of Kira, Evans, and Perrin over Dahms‘s assertion that Yonikuss was the person who committed the crime. (Appellant‘s Brief at 21-22).
{¶87} There is limited direct evidence linking Dahms to the Subway restaurant break-in—namely, the surveillance video. (See State‘s Ex. 17). While the person seen in the surveillance video is unidentifiable, Detective Frankart testified that Dahms matches the build of the person seen in that video. The surveillance video was played for the jury, and the jury was able to observe Dahms in the courtroom.
{¶88} Dahms contends that Yonikuss—who allegedly looks similar to Dahms—committed the Subway restaurant break-in. However, Dahms‘s self-serving contention that Yonikuss is the perpetrator of the break-in is outweighed by the evidence revealed by Detective Frankart‘s investigation that: (1) Yonikuss was
{¶89} Dahms further argues that the State‘s theory of the case is belied by the evidence that he did not have transportation from Findlay—where he was allegedly staying with Thornton—to Fostoria, which is a 15-20 minute drive from Findlay, to commit the Subway restaurant break-in. Aside from Dahms‘s self-serving version of events, Thornton is the only witness to allege to have seen Dahms in Findlay the night of the break-in. While Thornton claimed that she saw Dahms before she went to sleep between 10:00 p.m. and 1:00 a.m. on April 20 and right as she woke up around 7:50 a.m. on April 21, 2015, the State presented evidence that Thornton suffered several strokes and had difficulty remembering events. Likewise, the State presented evidence that Thornton was easily manipulated and that Dahms regarded Thornton as “retarded.” The jury was free to disbelieve Thornton‘s testimony, especially in light of the testimony of the other witnesses who said they saw Dahms in Fostoria shortly after the Subway restaurant break-in, confessing to the break-in. Moreover, at one point, Dahms asserted to Detective Frankart that he was with Thompson and Jade at Thornton‘s house the night of the break-in;
{¶90} Dahms also contends that the testimony of Kira, Evans, and Perrin is unbelievable compared to Dahms‘s version of events. Indeed, Dahms points to weaknesses in Kira‘s, Evans‘s, and Perrin‘s testimony, which Dahms argues undermines their credibility. Dahms argues that the jury lost its way in concluding that he was the person who committed the Subway restaurant break-in because Kira‘s testimony is not credible because she “was shown to be willing to lie just to get [Dahms] in trouble.” (Appellant‘s Brief at 21).
{¶91} However, the jury heard Detective Frankart‘s testimony in which he concluded Kira to be credible in her report that Dahms was the person who committed the Subway restaurant break-in because Kira knew specific facts regarding the break-in that were not available to the public, her story was consistent, and she voluntarily called him to correct her statement when she realized that she provided an incorrect date of when the break-in occurred. Moreover, Dahms‘s theory that Kira had a motive to lie because she was angry with him for ending their relationship, and because she has a history of reporting Dahms to law enforcement when she was angry with him, is belied by the evidence that Kira could have
{¶92} Further, Dahms argues that Kira‘s credibility is undermined by the lack of evidence in Kira‘s phone that Dahms called her a “snitch” as she reported to law enforcement. However, the jury heard Kira‘s recorded statement in which she recalled that she could not remember whether Dahms called her a “snitch” through text message or by phone conversation, but that she was adamant that Dahms called her a snitch, and she testified to the same. The jury was free to infer whether Kira was lying about the Subway restaurant break-in or revealing the truth.
{¶93} Moreover, Kady, Andy, Evans, and Perrin provided consistent accounts to that of Kira‘s linking Dahms to the break-in throughout Detective Frankart‘s investigation, and Kady, Evans, and Perrin testified to the same. Indeed, Kira, Kady, Andy, and Evans indicated that they saw Dahms after the break-in and that Dahms confessed to them to committing the break-in. Evans further indicated that Dahms suggested to him prior to the break-in that he was going to “hit a lick,” or steal money, later that day and asked him to join him. That Evans declined Dahms‘s offer is supported by the video surveillance, which depicts only one perpetrator. Similarly, Perrin testified that Dahms admitted to him multiple times that he committed the break-in. The jury was free to believe or disbelieve their testimony.
{¶94} Collectively, the State‘s witnesses testified that Dahms was the person who committed the break-in. While there were some issues with those witnesses’ credibility, “““[t]he jury, as the trier of facts, ‘may believe or disbelieve any witness or accept part of what a witness says and reject the rest.‘““” Missler, 2015-Ohio-1076, at ¶ 44, quoting State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-Ohio-2128, ¶ 68, quoting State v. Antill, 176 Ohio St. 61, 67 (1964). “““A verdict is not against the manifest weight of the evidence because the [jury] chose to believe the State‘s witnesses rather than the defendant‘s version of the events.““” Id., quoting State v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15, quoting State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. In sum, Dahms‘s arguments concerning the evidence that he is not the person who committed the Subway restaurant break-in are unpersuasive, especially compared to the weighty evidence against him discussed above. As such, Dahms‘s breaking-and-entering conviction is not against the manifest weight of the evidence.
{¶95} Finally, Dahms‘s attempted-complicity-to-tampering-with-evidence conviction is not against the manifest weight of the evidence.
(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation;
{¶96} Dahms does not point to any evidence that weighs against his attempted-complicity-to-tampering-with-evidence conviction. Dahms‘s letters and the recordings of Dahms‘s phone calls speak for themselves. The jury was able to hear Dahms instruct multiple witnesses to discard potential evidence. Indeed, Dahms can be heard instructing Evans to dispose of “trash,” which Evans stated meant that Dahms wanted him to dispose of the hooded sweatshirt and the safe box. Likewise, Dahms can be heard instructing Thornton to dispose of the letters in which he bribed her to provide law enforcement with an alibi. For these reasons, we reject Dahms‘s argument.
Assignment of error No. III
Appellant received Ineffective Assistance of Trial Counsel.
{¶98} In his third assignment of error, Dahms argues that his trial counsel was ineffective. In particular, he argues that his trial counsel was ineffective for failing to assert that his right to a speedy trial was violated.
{¶99} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 687. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors complained of must amount to a substantial violation of counsel‘s essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶100} Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting Bradley at 142, citing Strickland at 691. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., quoting Bradley at 142 and citing Strickland at 694.
{¶101} “When a claim of ineffective assistance of counsel is based on counsel‘s failure to file a particular motion, a defendant must show that the motion had a reasonable probability of success.” State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 11, citing State v. Carmon, 10th Dist. Franklin No. 11AP-818, 2012-Ohio-1615, ¶ 9 and State v. Barbour, 10th Dist. Franklin No. 07AP-841, 2008-Ohio-2291, ¶ 32, citing State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577 (4th Dist.). Here, Dahms‘s ineffective-assistance-of-counsel claim centers on his trial counsel‘s failure to file a motion to dismiss based on an alleged violation of his right to a speedy trial. See State v. Matland, 7th Dist. Mahoning No. 09-MA-115, 2010-Ohio-6585, ¶ 15. As such, an analysis of Dahms‘s third assignment of error necessitates a review of the law pertaining to speedy-trial rights. Id.
{¶103} ”
{¶104} “However, each day the defendant spends in jail solely on the pending criminal charge counts as three days.” Matland at ¶ 19, citing
{¶105} ”
{¶106} In this case, Dahms‘s trial counsel was not ineffective for failing to file a motion to dismiss alleging a violation of Dahms‘s speedy-trial rights because Dahms cannot demonstrate that the motion would have had a reasonable probability of success. See Matland at ¶ 50 (concluding that Matland‘s trial counsel was not ineffective for failing to file a motion to dismiss based on an alleged violation of his right to a speedy trial because that motion “would have failed unequivocally“).
{¶107} The speedy-trial clock began to run on August 7, 2015—the day after which Dahms was arrested in this case—and ran for 56 days before speedy-trial time was tolled as a result of multiple motions filed by Dahms delaying his trial. (See Doc. Nos. 4, 22, 23, 26, 34, 35, 36, 37, 39, 43, 44, 45, 47, 50, 51, 52, 53, 56).4
Indeed, Dahms filed three motions tolling the speedy-trial clock for the time
{¶108} Thus, even if we assume without deciding that Dahms benefitted from the “triple-count provision” under
{¶109} Dahms‘s third assignment of error is overruled.
Assignment of Error No. IV
Appellant‘s right to due process was violated as the State failed to disclose exculpatory evidence it had in its possession.
{¶110} In his fourth assignment of error, Dahms argues that he was denied due process of law because the State failed to disclose 181 jailhouse calls. It appears that Dahms is arguing that the State‘s failure to disclose those jailhouse calls amounted to a “Brady violation.”
{¶111} “[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” State v. Davis, 116 Ohio St.3d 473, 2008-Ohio-2, ¶ 338, quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). However, the United States Supreme Court later clarified, “““The rule of Brady * * * arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.““” (Emphasis added.) State v. Wickline, 50 Ohio St.3d 114, 116 (1990), quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392 (1976).
{¶113} Nonetheless, Dahms argues that the trial court erred when it denied his oral motion to continue trial for the purpose of investigating whether the State withheld exculpatory evidence. “When a defendant discovers that the State withheld potentially exculpatory evidence during the course of the trial proceedings, and not after,
The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply with this rule * * *, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.
{¶114} “The trial court has discretion to regulate discovery in a manner consistent with
{¶115} It appears that Dahms is arguing that the trial court abused its discretion by denying his motion to continue trial because that penalty “would have been the least restrictive means to correct the non-disclosure.” (Appellant‘s Brief at 26). When determining whether to impose a discovery-rule sanction, “[a] trial court must inquire into the circumstances surrounding a discovery rule violation and
{¶116} In this case, the trial court inquired into the circumstances surrounding the alleged
this case has been ongoing since August of 2015. We actually prepared for trial, it as originally set for trial, in October of 2015. Had [Dahms‘s trial counsel] requested [the State] certainly would have done so.
However, he waited until the night before trial to request all of these.
(Id. at 115). Ultimately, Dahms‘s trial counsel requested that the trial court “pause the trial and come back and resume it” or in the alternative to sanction the State by preventing it “from putting on any evidence related to this audio or testimony that could be in the audio.” (Id. at 119). The trial court agreed that the appropriate sanction is to prevent the State from using “anything that hasn‘t been provided in discovery.” (Id. at 120). As such, the trial court denied Dahms‘s motion to continue trial. (See id. at 121).
{¶117} Even if we assume without deciding that the jailhouse phone calls are properly discoverable evidence, the trial court did not abuse its discretion by
{¶118} Nevertheless, the trial court did not abuse its discretion by denying Dahms‘s motion to continue trial. As with its regulation of discovery under
{¶119} As we previously noted, Dahms was granted two continuances in this case. The State informed the trial court that Dahms‘s trial counsel had in his possession in August 2015 the audio tapes from which Dahms‘s trial counsel claimed to have learned of the existence of the other jailhouse calls. Yet, Dahms‘s trial counsel waited until April 2016—just before trial—to review those recordings. Likewise, Dahms‘s trial counsel revealed that he learned from Dahms of the additional calls just prior to the commencement of trial—a conversation that could have occurred in the months leading up to trial. It is also unclear why Dahms did not reveal to his trial counsel the existence of those jailhouse calls—or whether there is potentially exculpatory evidence contained in those calls—prior to the time his
{¶120} Therefore, we conclude that the trial court did not abuse its discretion by preventing the State from using the jailhouse calls not provided through discovery as evidence—that is, imposing the least severe sanction that it determined to be consistent with the purpose of the rules of discovery.
{¶121} Dahms‘s fourth assignment of error is overruled.
Assignment of Error No. V
The Trial Court erred in ordering Appellant to serve a mandatory term of Post-Release Control.
{¶122} In his fifth assignment of error, Dahms argues that the trial court erred by ordering him to serve a mandatory period of post-release control. More specifically, Dahms argues that the trial court erred by imposing a mandatory three-year period of post-release control as to his bribery and intimidation-of-a-witness-in-a-criminal-case convictions because those offenses are not offenses of violence.
{¶123} Under
{¶124} Ohio‘s post-release control statute is codified under
{¶125} “If a prison sentence is imposed for a felony of the third degree that is not a felony sex offense and is not an offense of violence, then the parole board has the discretion to impose post-release control for ‘up to three years.‘” Id. at ¶ 17, citing
{¶126} Dahms challenges the trial court‘s imposition of a mandatory three-year period of post-release control as to his bribery and intimidation-of-a-witness-in-a-criminal-case convictions. The State concedes that the trial court erred by ordering Dahms to serve a mandatory three-year term of post-release control as to his bribery conviction. We agree. Dahms was convicted of bribery under
{¶127} However, we reject Dahms‘s argument regarding his intimidation-of-a-witness-in-a-criminal-case conviction under
{¶128} Dahms’ fifth assignment of error is overruled in part and sustained in part.
{¶129} Having found no error prejudicial to the appellant herein in the particulars assigned and argued in assignments of error one, two, three, four, and five, in part, we affirm the judgment of the trial court. Having found error prejudicial to the appellant herein in the particulars assigned and argued in assignment of error five, in part, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr