State v. GainesState v. Gaines
Appellee Trial Court No. 2008CR0212
v.
Martin Gaines
DECISION AND JUDGMENT
Appellant Decided: January 15, 2010
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Paul A. Dobson, Wood County Prosecuting Attorney, and Heather M. Baker, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
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HANDWORK, J.
{¶ 1} Appellant, Martin Gaines, appeals a judgment of the Wood County Court of Common Pleas and claims that the following errors occurred in the proceedings below:
{¶ 2} “I. Appellant‘s consecutive sentence violated appellant‘s right to due process under the
{¶ 3} “II. Appellant‘s sentence for convictions of forgery and misuse of credit cards should have been merged by the Court on the grounds of allied offenses of a similar import.
{¶ 4} “III. Appellant received ineffective assistance of Counsel in violation of his rights under the
{¶ 5} “IV. Appellant‘s conviction was against the manifest weight of the evidence presented by the State, and contrary to law.
{¶ 6} “V. The trial court committed error by imposing an award of restitution without an evidentiary basis.”
{¶ 7} On December 18, 2007, Penny Herbach drove to a YMCA located in Perrysburg, Wood County, Ohio, in order to “work out.” Herbach went into the YMCA leaving her purse, which contained her credit card, in her locked motor vehicle. Less than one-half hour later, she learned that the window of her car was broken and that her purse was removed from her vehicle. When she arrived home shortly after the incident, Herbach discovered that her credit card had already been used to purchase an item costing over $500 at Kmart.
{¶ 8} On January 2, 2008, Laura Sniadanko went to the Perrysburg YMCA with her child. She left her purse on the passenger seat of her locked automobile. When she returned to her car, the driver‘s side window of the vehicle was broken, and her purse was missing. On the same date that Sniadanko‘s purse was taken, a male, who was later identified as appellant, attempted to use her credit card to purchase CB equipment at a Pilot Travel Center located in Lake Township, Wood County, Ohio. The credit card was declined. At that point, the salesperson, Scott Andrews, noticed that the credit card was issued in the name of a woman and the party attempting to purchase the equipment was a male. He then “went to management” with the credit card. When he returned, the male was no longer in the store.
{¶ 9} Detective Nick Cook of the Perrysburg Police Department investigated the theft of Herbach‘s credit card. He had one of the Perrysburg police officers go to the Kmart where her card was used to retrieve the videotape of the individual who used that card. The detective was able to create a “still image” of the purchaser from the videotape, but Cook was unable to identify him. In early January 2008, however, Detective Mick Lento of the Lake Township Police Department contacted Cook and informed him of the facts surrounding the theft of Sniadanko‘s purse and the attempted use of her credit card at the Pilot Travel Center.
{¶ 10} Detective Cook and Detective Lento then met at the Lake Township Police Department and went to the travel center. After viewing the videotape of the attempted transaction using Sniadanko‘s credit card, Detective Cook remembered a previous
{¶ 11} Based upon the positive identifications, appellant was arrested. The Wood County Grand Jury indicted Gaines on (1) one count of forgery, a violation of
{¶ 12} After holding a sentencing hearing, the common pleas court sentenced appellant to 12 months in prison on each count, to be served consecutively, or an aggregate of four years of incarceration. The court also notified appellant that he may be subject to postrelease control and ordered him to pay restitution and the costs of prosecution.
{¶ 13} Because it relates to alleged error occurring pre-trial, we shall first address appellant‘s Assignment of Error No. III. In that assignment of error, appellant contends that his trial counsel was ineffective because he failed to file a motion to suppress the identifications made through the use of the photo arrays. In particular, he argues that the photo arrays were suggestive because his image was larger than the other photographs used in each array.
{¶ 14} In Strickland v. Washington (1984), 466 U.S. 668, 687, the United States Supreme Court devised a two prong test to determine ineffective assistance of counsel. In order to demonstrate ineffective assistance of counsel, an accused must satisfy both prongs. Id. First, he must show that his trial counsel‘s performance was so deficient that the attorney was not functioning as the counsel guaranteed by the
{¶ 15} Photo array evidence is suppressed only if the identification, or method of identification, is unduly suggestive and unreliable. State v. Waddy (1992), 63 Ohio St.3d 424, 438, citing Neil v. Biggers (1972), 409 U.S. 188. A court takes into account the following factors in determining the reliability and suggestiveness of the challenged identification: “the witness‘s opportunity to view * * * the defendant during the crime, the witness‘s degree of attention, the accuracy of the witness‘s prior description of the suspect, the witness‘s certainty, and the time elapsed between the crime and the identification.” Id. at 439, citing Neil, 409 U.S. at 199-200. In addition, if a pretrial photographic identification is followed by an eyewitness identification at trial, the photographic identification can be suppressed only if the procedure was suggestive enough to create “a very substantial likelihood of irreparable misidentification.” Simmons v. United States (1968), 390 U.S. 377, 384.
{¶ 16} In the present case, Scott Croft, the Kmart manager testified that he saw appellant the first time that he came to the store on December 18, 2007, and was able to make a purchase with Herbach‘s credit card. He also dealt with appellant on a face-to-face basis when appellant returned to the store, attempted to make a second purchase with that card, and it was declined. At that point, Croft suggested that appellant apply for his own Sears-Kmart credit card, and appellant “said yes.” Nonetheless, when Croft asked appellant for his driver‘s license, Gaines claimed that it was in his motor vehicle.
{¶ 17} Croft‘s photo array identification of appellant occurred on January 7, 2008, slightly less than three weeks after Gaines’ attempted second use of Herbach‘s credit card at Kmart. While the copy of appellant‘s driver‘s license photo appears to be slightly darker that the other photographs in the array, his image is comparable in size to those of the other individuals in the array. Furthermore, Croft also made an in-court identification of appellant as the person that successfully used and then unsuccessfully attempted to use Herbach‘s credit card a second time at Kmart on December 18, 2007. Accordingly we conclude that the process used to obtain photographic identification of appellant was not so suggestive that it created a substantial likelihood of irreparable misidentification by Scott Croft.
{¶ 18} Appellant also asserts that appellant‘s trial counsel was ineffective for failing to file a motion to suppress the identification made by Scott Andrews, the cashier at the Pilot Travel Center, because Gaines’ image is larger in the photo array shown to Andrews than the other five photographs in that array. We disagree. A review of that photo array shows that all six photographs are the same size and that all of the men in the array have very similar features. Andrews testified that appellant presented two separate credit cards in his attempt to purchase the CB equipment. Both of the cards were declined. At that point Andrews noticed that the second credit card was in a woman‘s name and went to speak with his manager. When Andrews returned to his station,
{¶ 19} Accordingly, appellant‘s trial counsel did not fail in any duty owed to appellant by failing to file a motion to suppress the witness identifications of appellant made from the two photo arrays, and appellant‘s Assignment of Error No. III is found not well-taken.
{¶ 20} In his Assignment of Error No. IV, appellant urges that his four convictions are against the manifest weight of the evidence. Nevertheless, in the body of this assignment of error, Gaines argues only that insufficient evidence was offered to obtain his convictions; therefore, the trial court erred in overruling his Crim.R. 29 motion for acquittal. Generally, errors not separately argued or supported by the briefs may be disregarded. See
{¶ 21} Sufficiency of the evidence and manifest weight of the evidence are quantitatively and qualitatively different legal concepts. State v. Thompkins (1997), 78
{¶ 22} On the other hand, when considering whether a conviction is against the manifest weight in a jury trial, an appellate court sits as the “thirteenth juror” and may disagree with the factfinder‘s resolution of the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. The appellate court reviews “‘the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶ 23} We shall first set forth the elements of the offenses charged in this cause.
{¶ 24}
{¶ 25} “(A) No person with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:
{¶ 26} “(1) Forge any writing of another without the other person‘s authority; ”
{¶ 28}
{¶ 29} Here, in reviewing all of the evidence offered at trial in a light most favorable to appellee, we conclude that all of the elements of the charged offenses were proven beyond a reasonable doubt. Furthermore, upon our review of the entire record of this cause we cannot say that the jury clearly lost its way and created such a manifest miscarriage of justice that appellant‘s convictions must be reversed and a new trial ordered. Accordingly, appellant‘s Assignment of Error No. IV is found not well-taken.
{¶ 30} Appellant‘s Assignment of Error No. I contends that by imposing consecutive sentences, the trial court violated his right to due process under the
{¶ 31} In Foster, Ohio‘s high court struck down
{¶ 32} Appellant points out, nonetheless, that in a recent United States Supreme Court case, a majority of the justices found that the
{¶ 33} In his Assignment of Error No. II, appellant maintains that his sentences for his convictions of forgery and the misuse of credit cards should have been merged because they are allied offenses of a similar import.
{¶ 34}
{¶ 35} “A) Where the same conduct by the defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 36} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all them.”
{¶ 37}
{¶ 38} As noted infra, the offenses of forgery and misuse of a credit card are defined as follows:
{¶ 39}
{¶ 40} “(A) No person with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:
{¶ 41} “(1) Forge any writing of another without the other person‘s authority; ”
{¶ 42}
{¶ 43} In comparing the elements of both offenses, it is clear that forgery can be committed without committing the offense of misuse of a credit card. For example, one can sign another‘s name on a check without the authorization of that person. Moreover, a forgery offense can be committed even in an instance where the person does not obtain property or services. Consequently, forgery and misuse of a credit card are not allied
{¶ 44} Finally, in his Assignment of Error No. V, appellant argues that the trial court erred in entering an order of restitution that lacks an evidentiary basis.
{¶ 45} At appellant‘s sentencing hearing, the trial judge verbally stated the amount of the losses; e.g., $282.89 for a side automobile window, suffered by Penny Herbach. Nevertheless, there is no testimonial or documentary evidence in the record of this cause to substantiate the amounts cited by the judge. Therefore, the trial court could not order appellant to pay restitution in the amount of $435.77 to Herbach. Accordingly, appellant‘s Assignment of Error No. V is found well-taken.
{¶ 46} The judgment of the Wood County Court of Common Pleas is affirmed in all respects except for the inclusion of $435.77 in restitution to Ms. Herbach in the sentence imposed. That provision, and that provision only, is ordered reversed and vacated, and this cause is remanded to the trial court for further proceedings consistent
Appellant is ordered to pay the costs of this appeal.
JUDGMENT AFFIRMED IN PART
AND REVERSED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Arlene Singer, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.