STATE OF OHIO, Plaintiff-Appellee, vs. JOHN J. KISER, Defendant-Appellant.
Case No. 15CA25
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
Released: 07/29/16
2016-Ohio-5307
McFarland, J.
[Cite as State v. Kiser, 2016-Ohio-5307.]
Timothy Young, Ohio State Public Defender, and Peter Galyardt, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Gary D. Kenworthy, Circleville City Law Director, Circleville, Ohio, for Appellee.
McFarland, J.
{¶1} John J. Kiser, II appeals the judgment of the Circleville Municipal Court entered on September 6, 2015. Appellant was convicted of theft, a violation of
{¶2} Appellant was charged with a misdemeanor theft offense in violation of
{¶3} Don Barton, an asset protection officer with Walmart, testified at trial that Walmart surveillance tape demonstrated that Appellant had picked up the phone from the counter and placed it in his pocket. Barton later gave the video to the Pickaway County Sheriff‘s Office. Sgt. John Schleich of the sheriff‘s office testified he had viewed the surveillance video and observed Appellant, behind Kylie in the checkout line, placing the phone in his pocket. Schleich testified when he asked the secretaries in the office to find the video for trial, they were unable to locate it.
{¶4} Schleich testified he questioned Appellant days later at his home. Appellant admitted he placed the phone in his pocket but stated he thought it belonged to his step-daughter. He went into the girl‘s room, retrieved the phone,
{¶5} Appellant testified on his own behalf at trial. He admitted when he learned he was mistaken, he did not return the cell phone to Walmart or contact authorities. Kylie Williams and Sgt. Schleich identified Appellant as the person on the surveillance video who picked up Kylie‘s phone. Don Barton identified photographs, which he gave to the sheriff‘s office, of Appellant inside the store and in his vehicle in the parking lot at the relevant time. The photographs were properly admitted into evidence. Additional facts elicited from the witnesses will be set forth below, where relevant.
{¶6} A jury trial was scheduled for April 2, 2014. Appellant failed to appear and a warrant for his arrest was issued. Appellant was later arrested on the warrant and the trial was rescheduled for September 16, 2015. Appellant was convicted and sentenced to 90 days in jail with 85 days suspended. He was further ordered to a period of 12 months of probation and ordered to pay restitution. Appellant has filed a timely appeal.
ASSIGNMENT OF ERROR ONE
“I. PROSECUTORIAL MISCONDUCT DEPRIVED JOHN KISER OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS.”
STANDARD OF REVIEW
{¶7} “The test for prosecutorial misconduct is whether the conduct was
LEGAL ANALYSIS
{¶8} Appellant first contends the State improperly testified to facts not in evidence. Appellant‘s defense was mistake of fact. He contends his evidence
“And unfortunately it‘s taken a couple of years to get to this point in trial because the defendant, a couple of times this was set for trial and the defendant did not appear so it‘s kind of drug on.”
{¶9} Appellant argues the fact that he did not appear at previous hearings had no relevance to his guilt or innocence, and that it was a more prejudicial than probative statement. We begin by noting that Appellant failed to object to any of the comments to which he now directs our attention on appeal. Failure to object to an alleged error waives all but plain error. State v. Canterbury, supra, at ¶ 15; State v. Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, ¶ 28. See State v. D‘Ambrosio, 73 Ohio St.3d 141, 143-144, 652 N.E.2d 710 (1995). Notice of
{¶10} We have found no case on all fours with the one sub judice. However, State v. Jones, 2nd Dist. Greene No. 2005-CA-01, 2004-Ohio-5910, concerns a prosecutor‘s addressing a failure to appear during his opening statement. The prosecutor stated as follows at ¶ 5:
“The Defendant is then placed in the county jail where he makes bond. He‘s out on bond. And during the course of this process the Defendant is scheduled to have a trial on this matter in August of 2004, specifically, I believe, August 31, 2004. The Defendant decides he doesn‘t want to come to trial, and he decides to leave, and fails to appear for his Court appearances and check-in, and has to be arrested by Court warrant to bring him here today.”
In Jones, the prosecutor not only made the allegedly improper comment in opening, but also presented evidence on the sub-issue of Jones’ failure to appear. The prosecutor called a pre-trial release specialist and cross-examined Jones’ father about the failure to appear at trial. The trial court also instructed the jury about the fact that evidence that Jones failed to appear had been presented, and emphasized that Jones had not been charged with any crime involving his failure to appear.
{¶11} On appeal, Jones insisted that evidence of his failure to appear for his first scheduled trial date had no possible relevance to his guilt or innocence. However, the appellate court observed that Ohio courts have concluded that a defendant‘s failure to appear for trial may indicate consciousness of guilt. Id. at 11.
{¶12} In resolving the appeal, the Jones court held:
“In light of the case law set forth above, we cannot say that the trial court abused its discretion in admitting evidence of Jones’ failure to appear for trial and the forfeiture of his bond. Id. at 13. * * * In our view, [], the State was entitled to argue that Jones’ failure to appear was tantamount to flight, concealment, or related conduct to avoid prosecution for his third domestic violence offense, and that it tended to show consciousness of guilt. Although the jury was free to accept or reject this argument, Jones’ failure to appear for trial was relevant to his guilt or innocence. Moreover, we are unpersuaded that the probative value of testimony on the failure-to-appear issue was substantially outweighed by the danger of unfair prejudice. Thus, the opening statement, trial testimony, and jury instruction were permissible. Hagwood, supra; Fain, supra; Behun, supra; Collins, supra.”
The Jones court further stated:
“[E]ven assuming arguendo that Jones had demonstrated some error, we would find it was harmless beyond a reasonable doubt. * * * In our view, however, the evidence of domestic violence is overwhelming, and any possible error in the prosecutor‘s opening statement, the testimony about Jones’ failure to appear, and the jury instruction on the issue was harmless beyond a reasonable doubt.”
{¶13} While we note that the State did not present evidence of Appellant‘s failure to appear in court earlier, we find it reasonable for the State to explain to the jury why an incident which had occurred in April 2013 was belatedly brought to trial in September 2015. And here, the prosecutor made no specific argument as in Jones, that Appellant‘s failure to appear was suggestive of his guilt. We also note that the trial court instructed the jury that the evidence did not include the opening statements or closing arguments of counsel. The trial court stated: “Mr. Kiser as you know and you‘ve been told this several times, has been charged with one count of theft.” The record shows no indication the jury was confused about the nature of Appellant‘s charge.
{¶14} Both the prosecution and the defense have wide latitude during opening and closing arguments. Canterbury, supra, at ¶ 22. State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, at ¶ 33. In light of the other evidence presented, which we will discuss below, we do not find that plain error occurred.
{¶15} In addition to the testimony of Kylie Williams, her mother, Vickie Williams, Don Barton, and Sgt. Schleich, Appellant testified in his own defense.
{¶16} Appellant testified he didn‘t return the phone because he was working as a contractor on a “big job,” was “way behind” and working from “dusk til dawn.” He was also having problems with his girlfriend and was “kind of staying with another person here and there” and “it just slipped my mind. I mean, I just forgot to take it back, I mean.” Appellant denied using the phone.
{¶17} On cross-examination, Appellant testified he did not recall Kylie asking them about the phone. When asked if he was the person identified in the photograph, he testified “I couldn‘t tell you to be honest. I mean, I don‘t know.” He stated he wasn‘t sure he had plaid pants like the person in the photograph.
{¶18} Appellant testified when he left with Kierra, he didn‘t ask her if it was her phone because “[S]he leaves it lay around a lot and I just thought it would be funny to see how long it took before she realized it was missing. * * * Cause she
{¶19} On redirect, Appellant clarified he realized the cell phone wasn‘t Kierra‘s when he saw Kierra‘s phone in her hand. On recross, Appellant explained he didn‘t go immediately back to Walmart because “[W]e were on our way to do something. I think I might even have been on lunch break. I‘m not sure.” At that point, the State called Sgt. Schleich in rebuttal. He testified the incident occurred around 5:00 in the afternoon.
{¶20} Appellant next points to these statements made during the State‘s closing argument:
“And if anyone has had cell phones before, it doesn‘t wipe the information out just because you deactivate it. That information is still there, it‘s just you can‘t use the cell phone and they take the sim card out or whatever they are using, that particular company. So I think that‘s probably the most significant factor is, if you‘re not going to keep the cell phone, if you don‘t intend to keep it from her possession, why would you wipe her information out? I think those are aspects you need to keep in mind when you deliberate this particular matter [be]cause those all go to the knowing element and the intent to deprive the owner in this case * * * of her cell phone.”
{¶22} A prosecuting attorney has wide latitude to summarize the evidence and zealously advocate the State‘s position during closing argument. Hunter, supra, at ¶ 35. See State v. Richey, 64 Ohio St.3d 353, 362, 595 N.E.2d 915 (1992). The propriety of a specific remark by a prosecutor must not be judged in isolation, but in light of the tenor and context of the entire closing argument. See State v. Slagle, 65 Ohio St.3d 597, 607, 605 N.E.2d 916 (1992). State v. Keenan (1993), 66 Ohio St.3d 402, 613 N.E.2d 203. The court has held that wide latitude is appropriate for both sides in their closing “as to what the evidence has shown and what reasonable inferences may be drawn therefrom.” Lott, 51 Ohio St.3d at 165, 555 N.E.2d 293, quoting State v. Stephens, 24 Ohio St.2d 76, 263 N.E.2d 773 (1970). Reversal is warranted only if the prosecutorial misconduct “permeates the entire atmosphere of the trial.” United States v. Warner (C.A.6, 1992), 955 F.2d 441, 456. See, also, State v. Tumbleson (1995), 105 Ohio App.3d 693, 664 N.E.2d 1318.
{¶24} The prosecutor‘s argument about the cell phone suggested Appellant cleared the information out of the phone because he intended to keep it. There was some testimony on this point from Kylie‘s mother. The prosecutor‘s statement is in the nature of testimony to be properly admitted from a representative of the cell phone store or some other representative of the cell phone company with expertise in the operation of the cell phone and the sim card. It appears Appellant‘s
{¶25} The trial court instructed the jury on credibility. It is well-settled that the weight and credibility of evidence are to be determined by the trier of fact. State v. Owens, 2016-Ohio-176, - - N.E.3d. - -. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 14 N.E.3d 818, at ¶ 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.” Owens, supra, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. Appellant‘s explanation for his mistake and failing to return the phone were apparently not credible to the jurors.
{¶26} As set forth above, Appellant testified he picked up the phone and placed it in his pocket at the checkout. Kylie Williams testified she came back in while Appellant and his step-daughter were still there, and asked if they had seen the phone. They denied seeing a phone and Appellant denied recollection of being questioned by Kylie in the store. Again, the jury made a credibility determination.
{¶27} Officer Schweich testified when Appellant retrieved the phone, he went on to state that “it didn‘t even have a charger anyway.” Appellant denied making this statement. Again, the jury was free to choose which testimony to believe.
{¶29} Appellant next takes issue with these comments during rebuttal:
“Now while it[‘]s unfortunate that the tape is no longer available, keep in mind this happened over two years ago, but that‘s because the defendant failed to appear for trial two times and this case has been drug on for two years. Unfortunately, those things over a period of time get misplaced or they‘re over there someplace but can‘t be located so it‘s not that we‘re trying to hide anything.”
* * *
“And then and maybe most importantly, if you didn‘t intend to keep the cell phone, why do you wipe the information out. Now whether they turn the phone off or not, you still have the ability to recover the information you got on there as far as your contacts, your emails, text messages and so forth. These were all gone. Her background‘s gone. Everything‘s wiped clean. If you didn‘t intend to keep the phone why do you wipe it clean. So I think all of those things you have to consider when you make the determination was this a mistake or was this an attempt to keep this property.”
{¶31} Finally, Appellant further contends that the State may not vouch for a victim‘s credibility. Because the verdict rested solely on Appellant‘s mistake defense, he argues the impact of vouching was instrumental and not curable through general jury instructions. The State commented during closing:
“[The victim] I think has come up, testified to you very honestly at what she saw and what she didn‘t, there‘s no reason to doubt her testimony here.”
{¶32} As a general matter, “[i]t is improper for an attorney to express his or her personal belief or opinion as to the credibility of a witness.” Canterbury, supra, at ¶ 25, quoting State v. Thompson, 141 Ohio St.3d 254, 292, 2014-Ohio-4751, 23 N.E.3d 1096; quoting State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997).
{¶33} Generally, prosecutorial misconduct will not provide a basis for overturning a criminal conviction, unless, on the record as a whole, the misconduct can be said to have deprived the appellant of a fair trial. State v. Hunter, 1st Dist. Hamilton Nos. C-140684, C-140704, and C-140717, 2016-Ohio-123, at ¶ 34. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). Here, based upon a review of the record and considering the complained of statements within the context of the entire trial, we cannot conclude that any of the prosecutor‘s statements, in isolation or cumulatively, when reviewed under the plain error
{¶34} Further, in reaching this decision, we rely on the instructions given to the jury, which inform the jury that statements of counsel are not to be considered as evidence. See Canterbury, supra, at 23. For instance, the jury was instructed that “[t]he evidence does not include * * * the opening or closing arguments of counsel.” Further, the jury was instructed that “[t]he opening statements and closing arguments of counsel are designed to assist you. They are not evidence.” ” ‘A presumption always exists that the jury has followed the instructions given to it by the trial court.’ ” Canterbury, supra; State v. Murphy, 4th Dist. Scioto No. 09CA3311, 2010-Ohio-5031, ¶ 81; quoting Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990), paragraph four of the syllabus. Based on the trial court‘s instructions, as well as the other evidence in the record, we cannot say that the prosecutors’ statements changed the outcome of the trial. For the foregoing reasons, we find Appellant has failed to demonstrate plain error.
ASSIGNMENT OF ERROR TWO
“II. THE TRIAL COURT ERRED WHEN IT IMPOSED RESTITUTION FOR UNDAMAGED, RECLAIMED PROPERTY.”
{¶35} Generally, a decision to award restitution lies in a trial court‘s sound discretion and its decision will not be reversed on appeal absent an abuse of discretion. State v. Shifflet, 2015-Ohio-4250, 44 N.E.3d 966 (4th Dist.), at ¶ 49. State v. Stump, 4th Dist. Athens No. 13CA10, 2014-Ohio-1487, ¶ 11; see State v. Dennis, 4th Dist. Highland No. 13CA6, 2013-Ohio-5633, at ¶ 7; State v. Jennings, 8th Dist. Cuyahoga No. 99631, 2013-Ohio-5428, at ¶ 40. An abuse of discretion suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable. State v. Perkins, 3rd Dist. Marion No. 9-13-52, 2014-Ohio-2242, ¶ 10, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). “Under this standard of review, an appellate court may not simply substitute its judgment for that of the trial court.” Perkins, supra, quoting State v. Adams, 3rd Dist. Defiance No. 4-0916, 2009-Ohio-6863, ¶ 33. “A trial court abuses its discretion in ordering restitution in an amount that was not determined to bear a reasonable relationship to the actual loss suffered.” State v. Portentoso, 173 Ohio App.3d 297, 2007-Ohio-5490, 878 N.E.2d 76, (3rd Dist.), at ¶ 8 (internal citations omitted.). See also State v. Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 19 (4th Dist.).
LEGAL ANALYSIS
{¶36} Appellant was ordered to pay a total of $250.84 in restitution to the victim. Of that amount, $37.35 was compensation for the phone case which was
{¶37}
“[A]ny economic detriment suffered by a victim as a direct and proximate result of the commission of an offense and includes any loss of income due to lost time at work because of any injury caused to the victim, and any property loss, medical cost, or funeral expense incurred as a result of the commission of the offense. ‘Economic loss’ does not include non-economic loss or any punitive or exemplary damages.”
{¶39} A trial court is under no duty to itemize or otherwise explain how it arrived at the amount of restitution it orders, so long as the trial court can discern the amount of restitution to a reasonable degree of certainty from competent, credible evidence in the record. State v. Perkins, 3rd Dist. Marion No. 9-13-52, 2014-Ohio-2242, at ¶ 23. See State v. Didion, 2007-Ohio-4494, 173 Ohio App.3d 130, (3rd Dist.), at ¶ 20. Moreover, if an appellate court can discern from the record that the restitution order bears a reasonable relationship to the actual loss suffered by the victim, it will conclude that the trial court did not abuse its discretion. See Hipsher, 2012-Ohio-3206, at ¶ 12-14 (affirming the trial court‘s restitution order notwithstanding that the trial court did not itemize or explain how it arrived at the amount of restitution it ordered, because testimony in the record supported the amount of restitution).
{¶40} The victim‘s cell phone case was an “Otterbox” case. The victim‘s mother testified she bought a new cell phone case at the same time she bought her
Prosecutor: All right. Did you also buy a case for the phone at the time?
Witness 1: Yes.
Prosecutor: What type of case was that?
Witness 1: It was like the Otterbox case.
Prosecutor: Is that case on there the same one?
Witness 1: Yes.
Prosecutor: And since that time you used it on a different phone apparently?
Witness 1: No, I don‘t believe she has.
{¶41} While the victim in this case could use the old cell phone case for her new phone, at the time her phone was stolen, she did not know it would ever be returned. It is fair to say that in 2016, many parents and children have cell phones so that the children have the ability to contact parents in emergency situations or in order to maintain necessary contact. Kylie‘s mother purchased a new phone and case just a few days after the incident. Had Appellant returned the phone and case
{¶42} Other courts have noted that “voluntarily incurred expenses are not compensable as restitution damages.” Portenso, supra, at ¶ 9, quoting State v. Beam, 5th Dist. Delaware No. 06CAA030018, 2007-Ohio-386. See also Shifflet, supra, at ¶ 59. Despite the fact that the old phone case can be used, Appellant‘s actions caused the victim‘s mother to involuntarily incur this expense. For the foregoing reasons, we find the trial court did not abuse its discretion with regard to the award of restitution. As such, Appellant‘s second assignment of error is also overruled.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Circleville Municipal 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. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _______________________________
Matthew W. McFarland, 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.