STATE OF OHIO, PLAINTIFF-APPELLEE, v. GIOVANNI L. PELLEGRINI, DEFENDANT-APPELLANT.
CASE NO. 1-12-30
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
January 22, 2013
[Cite as State v. Pellegrini, 2013-Ohio-141.]
Appeal from Allen County Common Pleas Court Trial Court No. CR2012 0008 Judgment Affirmed
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
PRESTON, P.J.
{¶1} Defendant-appellant, Giovanni L. Pellegrini, appeals the Allen County Court of Common Pleas’ judgment entry of conviction and sentence. We affirm.
{¶2} This case stems from the theft of a moneybag from a Rays Signature Foods’ employee, Mary Ann Norris, as she was walking the money to the bank for deposit. Pellegrini, an employee at Rays, provided inside information enabling his friend and co-defendant, Mike Pasterchik, to snatch the moneybag and drive off with co-defendant, Adam Reid. (May 8-9 2012 Tr. at 51-58, 87-88, 96-97, 101, 116-117). When Pasterchik ripped the moneybag from Norris’ hands, it caught a ring on her pinky finger, causing her to violently spin around and her finger to swell for several days after the incident. (Id. at 52, 58). Pellegrini was not present or working the day of the incident. (Id. at 43).
{¶3} On February 16, 2012, the Allen County Grand Jury indicted Pellegrini on Count One of robbery in violation of
{¶5} On May 8-9, 2012, the matter proceeded to jury trial, and the jury found Pellegrini guilty on both counts. (Doc. Nos. 60-62).
{¶6} On June 14, 2012, the trial court held a sentencing hearing. (Doc. No. 67). After the trial court concluded that Count Two was an allied offense with Count One under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the State elected to proceed on Count One of robbery. (Id.). The trial court then sentenced Pellegrini to three years imprisonment. (Id.).
{¶7} On July 5, 2012, Pellegrini filed a notice of appeal. (Doc. No. 71). Pellegrini now raises four assignments of error for our review. We elect to combine his first, second, and fourth assignments of error for analysis.
Assignment of Error No. I
The conviction for Robbery pursuant to
Assignment of Error No. II
The conviction for Robbery pursuant to
The conviction for Grand Theft was against the manifest weight of the evidence and not supported by sufficient evidence.
{¶8} In his first and second assignments of error, Pellegrini argues that his robbery conviction was not supported by sufficient evidence and against the manifest weight of the evidence, because the State failed to prove that he recklessly inflicted physical harm upon another during the commission of the offense. Particularly, Pellegrini argues that he was not “reckless” with respect to the physical harm caused to Norris since the injury “was completely unanticipated, as the intent was a simple grab-and-run with an expectation of grabbing the money bag without any injury intended or expected.” (Appellant‘s Brief at 7). Moreover, Pellegrini argues that
{¶9} In his fourth assignment of error, Pellegrini argues that his grand theft conviction was against the manifest weight of the evidence and not supported by sufficient evidence since the State failed to prove that he acted with “purpose to deprive the owner of property or services” as required under
{¶10} When reviewing the sufficiency of the evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus.
{¶11} 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.‘” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), 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).
{¶12} The criminal offense of robbery is codified in
{¶13} The requisite mental culpability for the criminal offense of robbery charged under
A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.
{¶14} The criminal offense of theft is codified in
{¶15} The complicity statute provides, in pertinent part: “[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense.”
{¶16} Trina Yvette Cannon, a customer service representative and assistant manager at Rays Signature Foods in Lima, Ohio, testified that, in December 2011, she was responsible for scheduling employees. (May 8-9, 2012 Tr. at 26-27). Cannon testified that, as of December 23, 2011, Pellegrini, who she knew as “Johnny,” had been employed as a bagger at Rays for three and one-half years. (Id. at 27-28). Cannon identified State‘s exhibit one as Pellegrini‘s time card statement for the week of December 19-25, 2011. (Id. at 30). Cannon testified that Pellegrini was scheduled to work every day that week, except Tuesday, since it was a holiday week, and Rays scheduled all of its employees to work all week on holiday weeks. (Id. at 33). Cannon testified, however, that Pellegrini did not work his scheduled shifts on Thursday, December 22, 2011, or Friday, December 23, 2011. (Id. at 33-34). Cannon testified that the week prior to Christmas is usually very busy so Rays does not normally like to honor requests for time off during that week. (Id.). Pellegrini insisted that he have Thursday and Friday off
{¶17} Cannon testified that Rays generally deposits $10,000.00 in cash per day, along with any checks it receives. (Id. at 36). Cannon testified that, prior to its bank deposit, Rays enters the deposit amounts into an in-house computer system. (Id.). Cannon identified State‘s exhibit two as the deposit summary for the week of December 19-25, 2011. (Id. at 37). Cannon testified that, for December 23, 2011, there were three entries on the deposit summary, including: $7,762.62 in checks; $10,000.00; and, $5,000.00. (Id. at 38). She further testified that the initials “M.A.N.” appearing next to the December 23, 2011 deposit entries stood for Mary Ann Norris, the Rays’ employee who prepared the deposit that day. (Id. at 38-39). Cannon testified that Norris did not make the scheduled deposit that day; but instead, the money was “snatched” as Norris and another employee were walking it to the bank. (Id. at 40). Cannon testified that neither Mike Pasterchik, nor Adam Reid, nor Pellegrini had permission to take the money. (Id.). Cannon testified that neither Pasterchik nor Reid ever worked at Rays. (Id.). On cross-examination, Cannon testified that the deposits were taken to the bank between, either 11:00 a.m. to 1:00 p.m. or between 12:00 p.m. and 2:00 p.m., though the exact time varies from day to day. (Id. at 43-44). Cannon testified that
{¶18} Mary Ann Norris testified that she has worked for Rays since 1990, and the Shawnee Rays for the past three and a half years. (Id. at 45). Norris testified that she is currently the office manager. (Id. at 46). Norris testified that she is familiar with Pellegrini and identified him in court. (Id.). She testified that, as part of her job responsibilities, she prepares and delivers bank deposits to the Huntington Bank, which is located right around the corner from Rays. (Id. at 47); (State‘s Ex. 3). Norris testified that, beginning on September 8, 2011 until the robbery on December 23, 2011, she was taking the Rays’ deposits to the bank every day. (May 8-9, 2012 Tr. at 49). Norris testified that, for security purposes, she usually asked one of the carry-out employees to accompany her, and that Pellegrini accompanied her to the bank 20 to 30 times. (Id. at 49-50). Norris testified that, on the day of the incident, she and the scanning coordinator walked out the front door of the store and were half-way into the drive of the bank when a man came up behind her, grabbed the money bag, and took off. (Id. at 51). Norris testified that she had the money bag wrapped around her little finger, and when the man snatched the money bag, it caught a ring on her pinky finger causing the ring to dig into her finger and her finger to swell. (Id. at 52). Norris testified that her finger was red and swollen for three to four days after the incident, though she did
{¶19} Norris identified State‘s exhibit four as the Rays’ moneybag, which Huntington Bank provided and was marked “Rays 106.” (Id. at 52-53). She identified State‘s exhibit five as the reusable, cloth Rays’ grocery bag she used to conceal the bank moneybag when she made deposits. (Id. at 53-55). Norris testified that she had the strap of the grocery bag wrapped around her pinky finger the day of the robbery. (Id. at 54). Norris identified State‘s exhibit six as a copy of one of the bank deposit slips that was rubber-banded to the money in the money bag the day of the robbery. (Id. at 54-55). Norris testified that there were two other deposit slips in the moneybag that day as well, one for five thousand in cash and another for a little over seven thousand in checks. (Id. at 56). Norris identified State‘s exhibit seven as the bill straps for the money, which had her initials, M.A.N., on them, and were placed around the cash inside the moneybag. (Id. at 56-57). Norris testified that neither Pasterchik, nor Reid, nor Pellegrini had permission to take the money. (Id. at 58). On cross-examination, Norris testified that Pellegrini worked at Rays for around three and a half years, and she did not know of Pellegrini stealing anything from Rays during that time. (Id. at 59-60).
{¶21} Lima Police Detective Steven Stechschulte testified that, on December 23, 2011 around 1:00 p.m., he was called to the Rays Supermarket to investigate a robbery. (Id. at 73-74). Stechschulte testified that Detective Marik was the initial responder, so he conducted the initial interviews, but Detective Marik has since retired. (Id. at 74). Stechschulte testified that Marik informed him that two employees were walking the deposit to the bank when someone drove up next to them and one person got out of the car and grabbed the money bag out of the employee‘s hand and jumped back into the car and drove away eastbound. (Id. at 74-75). Detective Marik also informed him that a witness saw it happen and obtained a license plate number. (Id. at 75). Stechschulte testified that the vehicle was registered to Jeremiah Meritt at 903 Rice. (Id. at 77). He testified that he arrived at the scene and no one was home, so he talked with the neighbor to get information about the landlord. (Id.). According to Stechschulte, the neighbor told him that morning she saw a green Pontiac, later identified as a 1992 Pontiac Bonneville which was normally parked at the residence, leave with three white males inside. (Id. at 78-79). The landlord confirmed that Meritt lived at the residence along with Jim Cotter, and that they both worked at Kerns Fireplace on Elida Road. (Id. at 78). Stechschulte testified that he talked with
{¶22} Stechschulte testified that, after he left Kerns Fireplace, he called Adam Reid on the phone, and Reid claimed he was doing construction on a house in Dayton, which Stechschulte did not believe since he could hear a T.V. in the
{¶23} Stechsculte testified that he interviewed Pasterchik and Reid, who both eventually admitted to their involvement in the robbery. (Id. at 87-88). Stechschulte learned during his interviews that Pellegrini was also involved in the robbery. (Id. at 88). Stechsculte identified State‘s exhibit fifteen as a copy of portions of the interview with Pellegrini, which interview was subsequently played for the jury. (Id. at 89-92). Stechsculte testified that there was no video available
{¶24} On cross-examination, Stechsculte testified that, in June or July of 2011, Pellegrini had a conversation with Pasterchik about the lack of security at Rays. (Id. at 96). The text message that Pellegrini sent to Pasterchik showing the Rays’ employees taking a deposit to the bank was sent around late November or early December 2011. (Id. at 97). Stechsculte testified that they did not locate Pellegrini‘s fingerprints on the vehicle or any evidence that would implicate Pellegrini at Reid‘s residence or in Pasterchik‘s safe. (Id. at 98). Stechschulte testified that he did not find any physical evidence implicating Pellegrini. (Id. at 100). Pellegrini did not have any relevant, prior convictions according to Stechschulte. (Id. at 100-101). Stechschulte testified that Reid indicated during his interview that Pasterchik knew someone on the inside, though Reid had never met Pellegrini before. (Id. at 101). Stechschulte testified that the only money Pellegrini received from the robbery was the $19.99 for the ring warranty, and that Pellegrini stated during his interview that Pasterchik owed him $40.00. (Id. at 102).
{¶26} The defense called Adam Reid to the stand, who testified that he pled guilty to the robbery, which occurred at the Rays Supermarket on December 23, 2011, and that he has never personally met Pellegrini. (Id. at 111-112). On cross-examination, the State asked Reid what he meant by never meeting Pellegrini personally, and Reid testified that his brother bought some pills from Pellegrini and he was in the car with his brother at the time. (Id. at 113). Reid further testified that his brother purchased the pills from Pellegrini in the Rays parking lot. (Id.). Reid testified that he has done this sort of thing in the past and has a criminal record. (Id. at 114). According to Reid, Pasterchik told him about the Rays Supermarket ‘job,’ though Reid was reluctant to participate at first. (Id.). Reid testified that he saw a picture of two Rays employees walking across the Rays parking lot on Pasterchik‘s cell phone about three days prior to committing the robbery and once before, about four weeks prior to the robbery. (Id. at 116). Reid testified that he knew who sent the pictures and had reason to believe it was Pellegrini, and the information that Pasterchik provided him was important to completing the robbery. (Id. at 117). On re-direct, Reid testified that he was not sure how old the picture on Pasterchik‘s phone was or whether or not Pasterchik had saved the photo from before. (Id. at 118). Reid testified that Pasterchik
{¶27} The defense also called Detective Stechsculte, who testified that he had never retrieved the text message with the picture that was supposedly sent to Pasterchik. (Id. at 124). Stechsculte testified that Pellegrini indicated during the interview that the cell phone in his possession was not the same one he had when the text message was supposedly sent. (Id.); (Id. at 126). Stechschulte further testified that Pellegrini indicated that he got rid of the cell phone from which he sent the picture. (Id. at 126). Stechschulte also testified that it was his impression from the interviews with Reid and Pasterchik that they were trying to minimize Pellegrini‘s role in the robbery to protect him. (Id. at 128). He also testified that he did not believe Reid and Pasterchik were forthcoming about the amount of money Pellegrini received from the robbery. (Id. at 128, 131).
{¶28} Thereafter, the defense rested, and the jury found Pellegrini guilty on both counts. (Id. at 133, 190-191).
{¶29} Pellegrini argues that the evidence failed to show that he “inflict[ed]” physical harm upon the victim as that term is used in the robbery statute. Pellegrini cites to State v. Bates, 10th Dist. No. 97APA02-171 (Dec. 2, 1997) in support of his argument that he did not “inflict” physical harm. The victim in Bates severely lacerated his forearm when he punched the defendant, a would-be
{¶30} The facts of this case are clearly distinguishable from Bates. Norris, the victim herein, did not suffer the physical injury by attacking the criminal, like
{¶31} Next, Pellegrini argues that the evidence failed to demonstrate that he recklessly caused the victim physical harm since the injury was completely unforeseeable as the intent was a simple grab-and-run theft. We disagree. The evidence in this case demonstrated that Pellegrini provided Pasterchik with inside information concerning Rays’ depositing procedures. Pellegrini knew that Pasterchik was planning on taking the money from the Rays employees, and he knew that such an incident would likely result in a confrontation leading to physical harm of one or both of the employees. Pellegrini argues that the particular type of injury Norris suffered was “[o]nly because of a freak catch on a ring“; and therefore, he could not have appreciated the risk of this particular injury. It was not necessary that Pellegrini anticipate the exact nature and extent of Norris’ injury; it was only necessary that he anticipated that Norris would likely be injured under the circumstances. To hold otherwise defies common sense and strains the statutory language. Furthermore, the injury Norris sustained is similar
{¶32} Upon review of the evidence presented, we cannot conclude that the State presented insufficient evidence to sustain Pellegrini‘s robbery conviction or that his robbery conviction was against the manifest weight of the evidence.
{¶33} In his fourth assignment of error, Pellegrini argues that his grand theft conviction was against the manifest weight of the evidence because the State failed to prove that he acted with purpose to deprive Rays of the property. Pellegrini argues that he rejected an offer to join in the theft and did not expect any financial reimbursement. These arguments lack merit.
{¶34}
A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.
{¶35} Direct evidence is not essential to prove an element of an offense, and circumstantial evidence is equally probative, especially as to a mental state in which the sole direct evidence is known only to the accused. Jenks, 61 Ohio St.3d at 272. Moreover, since a defendant‘s mental state is difficult to demonstrate
{¶36} To begin with, we note that Pellegrini did not assert the affirmative defense of renunciation at trial.
{¶37} Pellegrini‘s first, second, and fourth assignments of error are overruled.
Assignment of Error No. III
Mr. Pellegrini was deprived of effective assistance of counsel.
{¶38} In his third assignment of error, Pellegrini argues that he was denied effective assistance of counsel because trial counsel: (1) allowed and perpetuated testimony of his prior bad acts, namely illegally selling prescription drugs; (2) bolstered the State‘s case by calling Adam Reid to the stand; (3) emphasized his prior bad acts and Reid‘s testimony in closing argument; (4) failed to call him as a witness in light of Reid‘s testimony; and, (5) allowed the jury to hear his refusal to consent to a search of his cell phone during the police interview.
{¶39} 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).
{¶41} Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.
{¶42} Pellegrini first argues that trial counsel was ineffective for failing to file a motion in limine to redact from his police interview his statement that Pasterchik owed him $40.00 for sharing drugs with him. We disagree.
{¶44} Next, Pellegrini argues that trial counsel was ineffective for calling Reid to testify that he admitted to the robbery and he did not know Pellegrini, facts already in evidence, and, thereby, opening the door to further testimony concerning Pellegrini‘s sale of illegal drugs.
{¶45} “‘Generally, counsel‘s decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.‘”
{¶46} When asked during his direct testimony whether he had ever met Pellegrini, Reid testified “[n]ot personally.” (May 8-9, 2012 Tr. at 112). On cross-examination, the State asked Reid what he meant by “not personally,” and Reid testified that his brother bought some pills from Pellegrini in the Rays parking lot. (Id. at 113). Trial counsel was not ineffective for calling Reid to testify. While trial counsel‘s strategy may have been ill-advised in hindsight, nothing in the record suggests that counsel was aware, or should have been aware, that Pellegrini sold Reid‘s brother drugs prior to calling Reid as a witness. Aside from that, the jury was already aware of Pellegrini‘s illegal drug activity from viewing the police interview, and we are not persuaded that he suffered prejudice from this testimony.
{¶47} Pellegrini further argues that trial counsel was ineffective for reemphasizing his illegal drug activity during closing arguments. We again disagree. “[T]he manner and content of trial counsel‘s closing arguments are a matter of trial strategy and do not constitute ineffective assistance of counsel.” State v. Turks, 3d Dist. No. 1-08-44, 2009-Ohio-1837, ¶ 42, citing State v. Williams, 3d Dist. No. 9-07-61, 2008-Ohio-3887, ¶ 70. After Reid‘s testimony turned out different than trial counsel expected, counsel attempted to explain the
{¶48} Next, Pellegrini argues that trial counsel was ineffective for failing to have him testify and for opening the door on the issue of his illegal drug activity. We disagree. Initially, we note that there is no indication in the record that Pellegrini ever requested to be a witness; consequently, we must presume that trial counsel made a tactical decision to keep him off the witness stand. State v. McClellan, 3d Dist. No. 1-09-21, 2010-Ohio-314, ¶ 61, citing State v. Solomon, 3d Dist. No. 9-03-58, 2004-Ohio-2795, ¶ 23. Furthermore, “‘[c]ourts are reluctant to find on direct appeal that an attorney has been ineffective for failing to call a witness, because it is difficult to show on direct appeal that a witness‘s testimony could have changed the outcome of the trial.‘” Solomon at ¶ 23, quoting State v. Hector, 2d Dist. No. 18653 (Mar. 8, 2002).
{¶49} Finally, Pellegrini argues that trial counsel was ineffective for allowing the jury to hear evidence concerning his refusal to consent to the search of his cell phone. Defendants cannot be penalized for exercising their constitutional rights; nevertheless, we are not persuaded that trial counsel‘s failure to redact this evidence from the police interview (State‘s Ex. 15) amounted to ineffective assistance. See Doyle v. Ohio, 426 U.S. 610, 618-619, 96 S.Ct. 2240 (1976) (right to remain silent under Miranda); State v. O‘Dell, 45 Ohio St.3d 140, 147 (1989) (right to trial); State v. Landrum, 53 Ohio St.3d 107, 110 (1990).
{¶50} During the police interview, law enforcement asked Pellegrini if the cell phone in his possession was the same cell phone he used to send Pasterchik the text message. (State‘s Ex. 15); (May 8-9, 2012 Tr. at 124-126). Pellegrini stated that it was not the same cell phone, and when law enforcement then asked for his consent to search it, he refused. (Id.); (Id.). This exchange lasted, at most, 30 seconds, while the interview lasted approximately 30 minutes. (State‘s Ex. 15). The State did not present any other evidence of Pellegrini‘s refusal to consent to
{¶51} Pellegrini‘s fourth assignment of error is, therefore, overruled.
{¶52} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
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