State v. PotchikState v. Potchik
Rendered on the 4th day of February, 2011.
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MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek, Ohio 45434-1021 Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant William J. Potchik appeals from his conviction and sentence for Robbery and Aggravated Robbery. Potchik contends that the trial court erred by
{¶ 2} We conclude that this record does not support a finding that the trial court erred by failing to hold a hearing on the issue of Potchik‘s competency to stand trial. Potchik did not put his competency into issue, and there is nothing in the record to suggest incompetency other than one unexplained remark by the trial court, during a hearing on another issue before trial, alluding to a prior “suggestion that you were not currently competent to stand trial.” We conclude that this one remark, without more, was not sufficient to put Potchik‘s competency to stand trial at issue.
{¶ 3} We conclude that the State presented sufficient evidence, in the form of eyewitness testimony, upon which a reasonable juror could conclude that Potchik used a gun during the commission of the offense. Finally, we conclude that the trial court did not err in its evidentiary ruling concerning character evidence.
{¶ 4} Accordingly, the judgment of the trial court is Affirmed.
I
{¶ 5} In late July, 2009, Samantha Brower was working as a cashier at a Rite Aid pharmacy on Linden Avenue when a man placed items on the counter before her. Brower
{¶ 6} A video surveillance camera recorded the encounter. Personnel from the pharmacy viewed photographs taken from the videotape and recognized the robber as William Potchik. Potchik had been a former regular customer, but had been barred from the store. Brower also identified Potchik as the robber.
{¶ 7} Potchik was arrested at his apartment. He waived his rights and consented to an interview, during which he admitted that he was the man in the photograph taken from the videotape. However, he denied committing a robbery.
{¶ 8} Potchik was indicted on one count of Aggravated Robbery and one count of Robbery, both with firearm specifications. Following a jury trial, he was convicted as charged and sentenced to six years in prison. From his conviction and sentence, Potchik appeals.
II
{¶ 9} Potchik‘s First Assignment of Error states:
{¶ 10} “THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT A COMPETENCY HEARING PURSUANT TO
{¶ 11} Potchik contends that the issue of his competency to stand trial was raised before trial, and that the trial court therefore erred by failing to conduct a competency hearing.
{¶ 12} “THE COURT: Mr. Potchik, first of all, and I know Mr. Goraleski‘s already told you this, you‘re set to go to trial on Monday and you have an absolute right to a trial and I don‘t want to interfere with that in anyway, that is your absolute right. And I‘m not trying to force you to do anything at all. All I‘m trying to outline for you are your options and then you‘re going to have to make a decision, all right?
{¶ 13} “THE DEFENDANT: Yes.
{¶ 14} “THE COURT: One option, of course, is you come Monday and we have a trial. Now, result of the trial will depend upon what 12 individuals, 12 jurors, believe about the evidence. And if those 12 jurors are convinced beyond a reasonable doubt of your guilt and your guilt of aggravated robbery with a firearm specification, the minimum sentence at that point would be six years of incarceration, six years.
{¶ 15} “Now, given the plea negotiations which have occurred, and I know about your background, one of the issues that I looked at earlier was your history of depression and some other issues, the mental health issues that you‘ve had over the years. I had review [sic] that because there was a suggestion that you were not currently competent to stand trial. Remember, you went and had the evaluations done. Do you remember all that?
{¶ 16} “THE DEFENDANT: Yes.
{¶ 17} “THE COURT: All right. And you know, I‘m aware of the history that you
{¶ 18} We have reviewed the record, and we have found no other allusion, in this record, to the possibility that Potchik might not have been competent to stand trial.
{¶ 19} Based solely upon the colloquy quoted above, Potchik argues that the issue of his “competence to stand trial was raised before trial but there is no indication in the court‘s journal entries that any hearing was held or that any finding was made.” Thus, he contends that his conviction must be reversed.
{¶ 20} The statute governing competency hearings,
{¶ 21} “(B) In a criminal action in a court of common pleas, a county court, or a municipal court, the court, prosecutor, or defense may raise the issue of the defendant‘s competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court‘s own motion.
{¶ 22} “(C) The court shall conduct the hearing required or authorized under division (B) of this section within thirty days after the issue is raised, unless the defendant has been referred for evaluation in which case the court shall conduct the hearing within ten days after the filing of the report of the evaluation or, in the case of a defendant who is ordered by the court pursuant to division (H) of
{¶ 23} “(D) The defendant shall be represented by counsel at the hearing conducted under division (C) of this section. If the defendant is unable to obtain counsel, the court shall appoint counsel under Chapter 120. of the Revised Code or under the authority recognized in division (C) of
{¶ 24} “A defendant is presumed to be competent.” State v. Smith, Montgomery App. No. 21058, 2006-Ohio-2365, ¶ 21, citing State v. Rose, Clark App. No.2004 CA 40, 2005-Ohio-3182, ¶ 10. “In order to rebut this presumption, the defendant must request a competency hearing and at a subsequent hearing, a preponderance of the evidence must show that the defendant, as a result of his present mental condition, is not capable of understanding the proceedings and is unable to assist in his defense.” Id.
{¶ 25} We conclude that there are insufficient indicia of incompetency in this case. Trial counsel never raised the issue of competency. Counsel did mention, in both the motion to suppress and the motion to reduce bond, that Potchik has experienced depression and has a bipolar disorder. But counsel affirmatively stated that Potchik‘s condition is treated and
{¶ 26} On this record, we conclude that there was not a suggestion of incompetency sufficient to have triggered a requirement of a competency hearing. In reaching this conclusion, we are motivated, to some extent, by a concern that trial judges should not be deterred from merely alluding, during a proceeding on the record, to the issue of a defendant‘s competency to stand trial, lest that mere allusion, without more, be deemed to trigger a requirement that the trial court conduct a full-blown competency hearing.
{¶ 27} The First Assignment of Error is overruled.
III
{¶ 28} The Second Assignment of Error is as follows:
{¶ 29} “WILLIAM POTCHIK WAS CONVICTED ON INSUFFICIENT EVIDENCE.”
{¶ 30} Potchick contends that the State did not present evidence sufficient to support his convictions because the State did not demonstrate that he utilized a gun during the offense.
{¶ 31} “A sufficiency of the evidence argument disputes whether the State has
{¶ 32} Potchik‘s argument centers on the fact that Brower testified that she did not “know anything specifically about guns,” never saw the barrel of a gun, did not hear the robber mention a gun, and just “assumed it was a gun.”
{¶ 33} Brower‘s testimony indicates that Potchik “lifted his shirt and showed the butt end of a gun[,] about the same time he asked me for the money.” Brower testified that “it was a silver handle with black grips. Kind of - it‘s not small like a small handgun. It was a little bit bigger but I don‘t know anything specifically about guns.” She testified that all she saw was the handle of the gun, because it was pointed downward. When asked whether she had any question regarding what Potchik was showing her by lifting his shirt, she replied “no, I just assumed it was a gun.” She later reiterated that she had no doubt that Potchik showed her a gun.
{¶ 34} A video recording of the offense taken from Rite Aid‘s security camera was played during Brower‘s testimony while she described to the jury the events as they unfolded.
{¶ 35} The jury was presented with testimony from an eyewitness that Potchik had a gun during the commission of this offense. Having also viewed the video recording, the jury was free to believe or disbelieve Brower‘s testimony. Clearly, the jury accepted Brower‘s claim that a gun was utilized despite the lack of visibility on the video recording. From the record before us, we conclude that the jury‘s decision to credit Brower‘s testimony concerning the gun was reasonable.
{¶ 36} The Second Assignment of Error is overruled.
IV
{¶ 37} Potchik‘s Third Assignment of Error states as follows:
{¶ 38} “THE TRIAL JUDGE ERRED IN RULING ON THE DEFENDANT‘S MOTION TO PRESENT CHARACTER WITNESSES PURSUANT TO EVIDENCE RULE 404(A)(1).”
{¶ 39} Potchik claims that the trial court erred by ruling that the State could present rebuttal character evidence of specific instances of conduct to rebut testimony concerning Potchik‘s peaceful character.
{¶ 40} Prior to trial, Potchik filed a motion in limine seeking to preclude any “evidence related to the defendant‘s contacts with Rite Aid staff on either June 19, 2006 or August 20, 2007.” Those prior contacts apparently involved thefts or attempted thefts
{¶ 41} During trial, Potchik notified the trial court that he wanted to call four character witnesses who would testify “that his reputation in the community is a reputation for peacefulness.” The trial court ruled that if Potchik presented this character-witness testimony, the State would then be free to introduce evidence regarding Potchik‘s prior contacts with the Rite Aid store.
{¶ 42}
{¶ 43} “(A) Character evidence generally. Evidence of a person‘s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, subject to the following exceptions:
{¶ 44} “(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same is admissible; * * *
{¶ 45} ” * * * *
{¶ 46} “(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶ 47}
{¶ 48} “(A) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or
{¶ 49} “(B) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct .”
{¶ 50} Under Evidence. R. 404(A)(1), once an accused presents evidence of his good character, the prosecution may offer evidence to rebut the accused‘s good-character evidence. State v. Ivory, Cuyahoga App. No. 83170, 2004-Ohio-2968, ¶ 16. Under
{¶ 51} Here, Potchik proffered the testimony of his character witnesses outside the presence of the jury. All four of these witnesses testified that Potchik was a peaceful person and had never been known to have a gun. One witness further testified that “[Potchik is] not a violent person. He doesn‘t get in trouble, he keeps to his own. He‘s a good guy. He has no reason to have a gun.” Another testified that Potchik has “always been kind of like a shy, timid, seclusive type of person.”
{¶ 52} The trial court determined that the character evidence proffered by Potchik was admissible. But the trial court pointed out the consequence to Potchik if he presented evidence concerning his good character:
{¶ 53} “Now the concern I have is if we go through the character evidence regarding peacefulness, and since the purpose of such character testimony is to demonstrate a general propensity that the Defendant is behaviorally incompatible with the crime charged, you have
{¶ 54} Thereafter, Potchik decided not to put the witnesses before the jury.
{¶ 55} We agree with the trial court that the testimony proferred by Potchik‘s witnesses would open the door to the State‘s inquiry into any specific acts of conduct of the accused to rebut that testimony of peacefulness, shyness and timidity. This evidence and method of cross-examination is permitted by
{¶ 56} Accordingly, the Third Assignment of Error is overruled.
V
{¶ 57} All of Potchik‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Hon. Michael Tucker