STATE OF OHIO, Plaintiff-Appellee, v. CHARLES R. GILLIAM, II, Defendant-Appellant.
Case Nos. 15CA19 15CA20
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
RELEASED 05/09/2016
2016-Ohio-2950
Hoover, J.
DECISION AND JUDGMENT ENTRY
Jesse A. Atkins, Atkins And Atkins, Attorneys At Law, LLC, Circleville, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecuting Attorney, and Heather M.J. Armstrong, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.
Hoover, J.
{¶1} Defendant-appellant, Charles R. Gilliam, II (“Gilliam”), appeals the judgments of the Pickaway County Common Pleas Court, finding him guilty of one count of intimidating a witness, a third degree felony; and two counts of theft, one being a fifth degree felony, and one being a first degree misdemeanor. Gilliam was sentenced to 18 months in prison for the intimidation offense and to community control for the theft offenses.
{¶2} In this consolidated appeal, Gilliam contends that the trial court erred by not declaring a mistrial after it was disclosed at his jury trial that during the course of the State’s investigation he had agreed to participate in a polygraph examination. However, because the trial court immediately instructed the jury to disregard any mention of the polygraph test, it did not abuse its discretion in denying Gilliam’s motion for a mistrial.
{¶4} Next, Gilliam contends that his theft convictions and intimidation of a witness conviction are against the manifest weight of the evidence. However, the State presented an abundance of evidence establishing Gilliam’s guilt; and even in the face of contradicting evidence, we cannot say that the record indicates that the jury clearly lost its way in reaching its conclusions. Accordingly, we reject this argument.
{¶5} Finally, Gilliam argues that his trial counsel rendered ineffective assistance of counsel by failing to disclose a key defense exhibit to the State prior to trial thereby causing its exclusion at trial. Because Gilliam has failed to demonstrate how the admittance of the trial exhibit would have resulted in a different outcome, we disagree.
{¶6} Accordingly, we overrule all four of Gilliam’s assignments of error and affirm the trial court’s judgments.
I. Facts and Procedural History
{¶7} On December 5, 2014, in trial court case number 2014 CR 303, Gilliam was indicted on charges of one count of burglary in violation of
{¶9} P.D. testified that in the days following the burglary he discovered suspicious activity on his checking account. He called the Pickaway County Sheriff’s Office and reported that his debit card had been used at several locations. He was able to provide officers with locations, times, and transaction amounts. Ultimately, it was determined that his card had been used at Meijers, Sterling One Stop (a gas station), The Buckeye Store, Family Dollar, Walmart, and Raising Canes restaurant.
{¶10} Detective Rex Emrick of the Pickaway County Sheriff’s Office also testified at trial. Emrick, the lead detective investigating the burglary, was able to obtain a receipt and video surveillance from Sterling One Stop and Walmart, and a video from Meijers. Emrick testified that after viewing the videos he determined that the individual using the card was Gilliam. The videos from Sterling One Stop and Meijers were played for the jury and admitted as evidence.
{¶12} Detective Emrick also interviewed Crissinger on September 19, 2014. According to Emrick, on that day, Crissinger denied having any knowledge about the burglary or knowing of any possible involvement by Gilliam.
{¶13} Based on the video surveillance and a tip from Mandie Clayton, Crissinger’s mother, Emrick obtained a warrant to search Gilliam’s home. The search did not turn up evidence of the burglary; however, Gilliam’s cell phone was seized based on information that there were text messages in reference to the burglary on the phone. A subsequent search warrant was then obtained to search the contents of the cell phone. Located within the phone were photographs of the purse and wallet belonging to G.G.
{¶14} During the course of the investigation, Emrick also interviewed Tyler Stone. When Stone came for his interview he brought a flat screen television and indicated that Gilliam had sold him the television. The television was subsequently identified as the television taken from the victims’ home.
{¶16} Crissinger also testified at trial. Crissinger and Gilliam had ended their relationship some time after the September 19th interview with Emrick; and Crissinger admitted at trial that she lied during her September 19th interview. According to Crissinger, a short time after the burglary, Gilliam told her that he walked into the home, grabbed as much as he physically could, heard a dog bark, and then left the residence. Crissinger also stated that Gilliam told her that he had taken purses, wallets, cell phones, a laptop, a television, and credit cards. On the day of the incident, Crissinger claimed that she, Kaylie Schooley, and Stone accompanied Gilliam to downtown Columbus so he could sell the cell phones. Crissinger also testified that Gilliam sold some of the other stolen items, that the purses were disposed of at a hotel in Grove City, Ohio, and that she witnessed Gilliam destroying the credit cards.
{¶17} Schooley also testified during the State’s case-in-chief. Schooley indicated that she and Gilliam were friends. According to Schooley, on September 9, 2014, she travelled to Gilliam’s home with Stone and Crissinger. While she was outside of the home, she witnessed Stone exit the Gilliam home with a television and also witnessed Stone place the television in the vehicle. Schooley also testified that on that same day, she, Stone, Crissinger, and Gilliam all drove to Columbus so Gilliam could sell two cell phones. Schooley denied knowing how Gilliam had acquired the cell phones.
{¶18} The State also presented Clayton’s testimony at trial. Clayton testified that Gilliam had admitted to her that he was responsible for the burglary and that he was by himself
{¶19} Clayton also testified that on February 27, 2015, she, her stepfather, Donald Wallen, and her mother stopped at a gas station in Harrisburg, Ohio, to purchase gas. As Clayton exited the gas station store she heard someone yell “bitch”. She then turned and saw Gilliam, who continued to yell at her, calling her a “snitch”. Clayton testified, specifically, that Gilliam told her she was lucky “he didn’t have a female with him right then to kick [her] ass * * * for being a snitch.” Clayton admitted at trial that she yelled back at Gilliam and got caught up in the moment, but that she also felt threatened and afraid. She also testified that Gilliam knew she was going to testify against him at trial when the confrontation occurred.
{¶20} Wallen also testified at trial. He testified that he broke-up the confrontation between Clayton and Gilliam at the gas station. According to Wallen, he heard Gilliam say to Clayton “bring dad out here and I’ll kick his ass” and “I’ll get some bitch to kick your ass”.
{¶21} In his case-in-chief, Gilliam presented the testimony of several witnesses including Abid Hussain, an employee of the Harrisburg gas station. Hussain testified that he witnessed the confrontation between Gilliam and Clayton. According to Hussain, Clayton instigated the confrontation by screaming at Gilliam and Gilliam said nothing other than “leave me alone”. Hussain testified that law enforcement never took a statement from him or otherwise questioned him about the incident.
{¶22} Gilliam also testified during his case-in-chief and denied any involvement in the burglary and theft. According to Gilliam, Stone was his “pot dealer”, and Stone would often
{¶23} Gilliam also testified that Stone gave him the debit card to use. Gilliam admitted to using the card at Sterling One Stop, Meijers, Raising Canes restaurant, and Walmart. He claimed that he used the card to purchase items for Stone, and in exchange, Stone allowed him to keep a few of the items. He was also present when Stone used the card at Family Dollar but he denied having used the card at The Buckeye Store. Gilliam claimed that he did not know the card was stolen when he used it; and he thought the card belonged to Stone’s parents even though the last name on the card differed from Stone’s last name. Gilliam also testified about renting a room at the Star City Inn. According to Gilliam, he rented the room because he felt “caught off guard”, and unsafe in his own home after the Sheriff’s Office arrived with the search warrant. He denied bringing any of the stolen items to the hotel.
{¶24} Gilliam also testified at trial that he never confessed to Clayton that he was responsible for the burglary. He also denied threatening Clayton at the gas station. Instead, Gilliam testified that he tried to ignore Clayton at the gas station but she confronted him and
{¶25} Finally, Gilliam testified that he was involved in a serious car accident on January 9, 2014, wherein he shattered his hip and pelvis, and was in a coma for 18 days. As a result of the accident Gilliam walks with the aid of a brace. Gilliam testified that in September 2014, he was still getting familiar with the brace, was in extreme pain, had trouble lifting objects, and could not walk long distances.
{¶26} Gilliam’s mother Lynn Lambert and stepfather Corky Lambert also testified during the defense’s case-in-chief. Corky testified that the family owns two vehicles, and that both vehicles were present at their home when he awoke at approximately 5:00 a.m. on September 9, 2014. Lynn testified that Gilliam was present and drove her to work on the morning of the burglary. Both claimed that Gilliam did not have access to any other vehicles.
{¶27} At the conclusion of trial, the jury found Gilliam not guilty of burglary, but guilty of two counts of theft, one a felony of the fifth degree, the other a misdemeanor of the first degree. The jury also found Gilliam guilty of one count of intimidating a witness, a felony of the third degree. The trial court sentenced Gilliam to 18 months in prison on the intimidating a witness count, and to community control on the two counts of theft. The trial court further ordered that the prison term be served consecutively with the community control sentence.
{¶28} Shortly thereafter, the trial court journalized sentencing entries in each case. Gilliam filed timely notices of appeal from both trial court cases. We consolidated the appeals.
II. Assignments of Error
First Assignment of Error:
The Appellant’s convictions for Theft and Intimidation of a Witness were against the manifest weight of the evidence.
Second Assignment of Error:
Appellant’s convictions for Theft are the result of the erroneous presentation of offenses of similar import, as well as the failure to provide the jury the opportunity to convict for receiving stolen property, both of which resulted in an inconsistent and erroneous verdict and should be accordingly overturned.
Third Assignment of Error:
Appellant’s representation during the trial phase of this matter was ineffective and appellant’s conviction should be reversed.
Fourth Assignment of Error:
The disclosure of a request for polygraph examination was prejudicial error requiring a mistrial.
III. Law and Analysis
{¶30} For ease of analysis, we elect to address Gilliam’s assignments of error out of order.
A. Mention of Polygraph Examination
{¶31} In his fourth assignment of error, Gilliam contends that the trial court erred in overruling his request for a mistrial. Specifically, Gilliam argues that a disclosure during the State’s case-in-chief that investigators requested that Gilliam submit to a polygraph examination was prejudicial error requiring a mistrial.
{¶33} Whether or not to grant a mistrial is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, ¶ 26. An abuse of discretion occurs when the trial court makes a decision that is unreasonable, arbitrary, or unconscionable. Id. “In general a mistrial should not be granted based on an error or irregularity unless an accused‘s substantial rights are adversely affected.” Id. at ¶ 27.
{¶34} Generally, “polygraph test results are admissible into evidence only when the defense and prosecution agree to its admissibility.” State v. Landrum, 4th Dist. Highland No. 14CA12, 2014-Ohio-5714, ¶ 9, citing State v. Dutiel, 5th Dist. Perry No.2012–CA–11, 2012–Ohio–5349, ¶ 20, and State v. Wine, 3d Dist. Auglaize No. 2–12–01, 2013–Ohio–2837, ¶ 23.
{¶35} In the case sub judice, the trial court promptly and clearly gave a curative instruction to the jury to disregard any mention of the request for polygraph examination. We also note that the reference at issue did not state the result of any polygraph examination that Gilliam might have taken. Accordingly, the trial court’s decision to overrule the motion for a mistrial and to rely on the curative instruction was not an abuse of discretion. Gilliam’s fourth assignment of error is not well taken and is overruled.
B. Inconsistent Verdicts
{¶36} In his second assignment of error, Gilliam contends that the jury‘s verdicts regarding the burglary and theft charges are inconsistent. Specifically, he asserts that the jury’s
{¶37} First, we note that “ ‘[i]nconsistent verdicts on different counts of a multi-count indictment do not justify overturning a verdict * * *.’ ” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138, quoting State v. Hicks, 43 Ohio St.3d 72, 78, 538 N.E.2d 1030 (1989). “ ‘The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count.’ ” Id., quoting State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978), paragraph two of the syllabus. “Thus, a verdict will not be set aside merely because the findings necessary to support the conviction are inconsistent with the findings necessary to acquit the defendant of another charge.” State v. Reine, 4th Dist. Scioto No. 06CA3102, 2007-Ohio-7221, ¶ 68, citing Browning v. State, 120 Ohio St. 62, 71, 165 N.E. 566 (1929). “[T]he sanctity of the jury verdict should be preserved and could not be upset by speculation or inquiry into such matters to resolve the inconsistency.” State v. Lovejoy, 79 Ohio St.3d 440, 444, 683 N.E.2d 1112 (1997).
{¶38} The cases are clear that consistency between two verdicts in a multi-count indictment is not necessary. Thus, even if such an inconsistency exists in the case sub judice, such inconsistency does not mandate a reversal of Gilliam’s conviction.
{¶39} Furthermore, Gilliam’s contention that the jury was forced to render inconsistent verdicts by his being indicted and tried for allied offenses of similar import is also misplaced. Even if we were to assume that the theft and burglary counts in this case were allied offenses of
{¶40} As the Supreme Court of Ohio makes abundantly clear in Whitfield, the State may indict and try a defendant for allied offenses of similar import. Thus, Gilliam’s contention that the jury should not have been given the opportunity to deliberate on both the burglary and theft counts because they are allied offenses of similar import is misplaced. Moreover, we fail to comprehend how the State’s decision to try Gilliam on both offenses forced the jury to render inconsistent verdicts.
{¶41} Finally, we disagree with Gilliam’s contention that the jury should have been given the opportunity to convict him of receiving stolen property, rather than theft, and that the failure to provide such opportunity forced the jury to render inconsistent verdicts. First, the State
{¶42} For all of the foregoing reasons, we overrule Gilliam’s second assignment of error.
C. Manifest Weight of the Evidence
{¶43} In his first assignment of error, Gilliam contends that his convictions for theft and intimidation of a witness are against the manifest weight of the evidence. Gilliam argues that the evidence adduced at trial does not support the theft convictions because it does not demonstrate that he knowingly obtained or exerted control over the victims’ property without their consent, or that he purposefully acted to deprive the victims of their property. This argument is consistent with Gilliam’s theory that he should have been charged with receiving stolen property rather than theft. In regards to his conviction for intimidation of a witness, Gilliam argues that the greater
{¶44} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011–Ohio–6254, 960 N.E.2d 955, ¶ 119. “Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence.” Thompkins at 387. But the weight and credibility of evidence are to be determined by the trier of fact. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132. “A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.” State v. West, 4th Dist. Scioto No. 12CA3507, 2014–Ohio–1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. Id.
{¶45} The jury found Gilliam guilty of two counts of theft and a single count of intimidating a witness. Theft is defined as: “[n]o person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [w]ithout the consent of the owner or the person authorized to give consent”.
{¶46} Here, the State’s evidence presented at trial, which included testimony from law enforcement officers, the victims, and associates of Gilliam, supported the jury’s conclusion that Gilliam knowingly exerted control over the victims’ property without their consent and with purpose to deprive them of their property. For instance, Clayton testified at trial that Gilliam had told her that he had stolen items in Orient, Ohio. Further, Clayton testified that Gilliam had asked for her help in selling the stolen purse and laptop belonging to the victims. Crissinger, Gilliam’s ex-girlfriend, provided more details about Gilliam’s involvement. Specifically, Crissinger testified that Gilliam had told her that he had taken purses, wallets, cell phones, a laptop, a television, and credit cards from the victims’ home. Crissinger also claimed to have seen Gilliam destroy credit cards and dispose of a purse at a hotel in Grove City, Ohio. Moreover, both Crissinger and Schooley testified that Gilliam possessed and sold two cell phones on the same day that the victims reported the theft of two cell phones from their home. Finally, video and still shots from various stores was presented at trial that showed Gilliam using the debit card of one of the victims. The State also presented photographs of the stolen purse and wallet taken from Gilliam’s cell phone shortly after the items were stolen.
{¶47} Gilliam testified at trial that he did not steal the items; instead, he only agreed to sell the items for Stone. However, the jury was free to believe all, part, or none of Gilliam’s testimony. West at ¶ 23; see also State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-
{¶48} Likewise, while conflicting testimony was presented regarding the intimidation of a witness charge, we reiterate that the jury was in the best position to judge and weigh the credibility of the witnesses. Furthermore, Gilliam’s argument that he had no motive to threaten or intimidate Clayton because he was innocent of the burglary charge is misplaced. At the time of the threats, Gilliam did not know that he would be acquitted of the burglary charge.
{¶49} Based on the evidence before it, the jury neither clearly lost its way nor created a manifest miscarriage of justice in finding Gilliam guilty of the two counts of theft and the intimidation of a witness count. Accordingly, we overrule Gilliam’s first assignment of error.
D. Assistance of Counsel
{¶50} Finally, in his third assignment of error, Gilliam alleges that he received ineffective assistance of counsel. Specifically, Gilliam contends that he was prohibited from introducing a defense exhibit containing his phone records from the morning of the burglary because his trial counsel failed to disclose the existence of the exhibit to the State prior to trial. Gilliam claims that the exhibit “might very well have led to a different outcome in this case” because the phone records “might have provided insight into [his] whereabouts, mental state, and other potential suspects in this case.”
{¶51} Criminal defendants have a right to counsel, including a right to the effective assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–Ohio–1366, ¶ 21. To establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1)
{¶52} Here, even if we were to assume that counsel’s performance was deficient, Gilliam still cannot establish that his counsel’s performance resulted in prejudice – i.e. the result of the proceedings would have been different. At trial, even though the trial court did not allow the phone records to be displayed or admitted as an exhibit, it did allow Gilliam’s mother to testify about the phone records. Specifically, Gilliam’s mother testified that she viewed her son’s phone records from the day of the incident and that there was “activity from 2:08 A.M. to about 9:00 something or 8:00”. She also testified that there were a number of calls that morning from a number associated with Stone. Thus, the evidence that was contained within the phone records was presented to the jury, albeit, in an alternative form. Moreover, we fail to see how this piece of evidence would have altered the outcome of Gilliam’s trial even if presented in exhibit form. The fact that Gilliam was active on his cell phone near the time of the burglary does not prove, as Gilliam would like this Court to believe, that he could not have committed the offenses. If
{¶53} For the forgoing reasons, we overrule Gilliam’s third assignment of error.
IV. Conclusion
{¶54} Having overruled all of Gilliam’s assignments of error, we affirm the judgments of the trial court.
JUDGMENTS AFFIRMED.
It is ordered that the JUDGMENTS ARE AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ____________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.