STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOHNNIE LEE SEXTON, AKA JOHNNIE L. SEXTON, DEFENDANT-APPELLANT.
CASE NO. 14-13-25
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
March 16, 2015
[Cite as State v. Sexton, 2015-Ohio-934.]
Appeal from Union County Common Pleas Court Trial Court No. 12-CR-0181 Judgment Affirmed
Alison Boggs for Appellant
Melissa A. Chase for Appellee
{¶1} Defendant-appellant, Johnnie Lee Sexton (Sexton), brings this appeal from the judgment of the Common Pleas Court of Union County, Ohio, which entered his conviction after a jury found him guilty of theft, safecracking, and burglary, and sentenced him to two consecutive prison terms of seven years and seventeen months upon a finding that theft and burglary were allied offenses of similar import, subject to merger, and the State‘s election that Sexton be sentenced on the burglary count. Sexton challenges his convictions on the grounds of the sufficiency and manifest weight of the evidence. He further alleges that at sentencing, the trial court erroneously relied on inaccurate information in the presentence investigation report. Additionally, Sexton argues that his trial counsel was ineffective. For the reasons that follow, we affirm the trial court‘s judgment.
A. Statement of Facts and Procedural History
{¶2} Sexton was an employee of MJR International, Inc. (MJR), which is a discount clothing business, involved in warehouse retail, pop-up sales, and wholesale. The business was located in a large building, which consisted of three main areas. In one part of the building, MJR operated a retail store, which was open Tuesday through Saturday from 9:00 a.m. until 7 p.m. By the retail store, were MJR‘s business offices. The remainder of the building was occupied by the
{¶3} On the evening of Friday, March 16, 2012, at the end of the business day, an assistant store manager, Miriam Renner (Ms. Renner), closed the retail store. She collected cash, checks, and credit card receipts from the store‘s registers and put them in blue zippered bank bags. She then took the bags into a so-called sample room, or an exercise room, in the office area, where the safe was located, and placed the bags in the safe. Ms. Renner then left the store.
{¶4} On Saturday, March 17, 2012, Sexton came to MJR, even though he did not work on Saturdays. The warehouse was closed, but the retail store was operating that day. He was seen by the store‘s manager, Crystal Roberts (Ms. Roberts).
{¶5} On Monday morning, March 19, 2012, the safe was found open and money was missing from the safe. Additionally, wet checks from the Friday‘s sales were found lying on a counter in the retail store area. Surveillance cameras were located throughout the building and a review of the video surveillance disclosed that MJR‘s janitor, Jose Machado (Mr. Machado), was the person who placed the wet checks on the counter. The video showed that Mr. Machado went to clean the restrooms on Monday morning and at one point, appeared coming out of the men‘s restroom with the wet checks in his hand, and then placed them on
{¶6} Further review of the video surveillance also showed that Sexton entered the men‘s restroom between the evening of Friday, March 16, 2012, when Ms. Renner put the checks into the safe, and the morning of Monday, March 18, 2012, when the checks were found in the toilet by Mr. Machado. The video also showed that prior to entering the restroom area, Sexton went into the warehouse area, where his desk was located, even though the warehouse was not operating and Sexton was not working that day. He was seen putting his baseball hat on his head and going toward the office area of the building. There were no surveillance cameras in the office area. Sexton was seen on the video surveillance again as he was walking toward the men‘s restroom. After leaving the restroom, Sexton wandered through the retail store area for a while and then, left the facility. Throughout all this time, Sexton carried something white in his hand.
{¶7} After a police investigation, Sexton was charged in connection with the missing money and the destroyed checks. He was indicted on August 13, 2012, on one count of theft, a felony of the fifth degree in violation of
{¶8} Sexton entered a plea of not guilty and attorney Clifton G. Valentine Jr. (Mr. Valentine), was appointed to represent him in further proceedings. (R. at 8, 12.) The State decided not to prosecute Sexton on the offense of identity fraud (see R. at 62-63), and the case proceeded to trial on the remaining three counts: theft, safecracking, and burglary. Sexton‘s rejection of plea agreement was filed with the trial court on the first day of the trial, which took place on October 23, and October 24, 2013. (R. at 64.)
-The Trial-
Jury Voir Dire
{¶9} During the jury voir dire, it became apparent that a mother and a son were in the jury pool. The State‘s attorney asked Mrs. Patterson, the mother, whether this situation was problematic to her, and Mrs. Patterson answered in the negative. (Tr.11 at 65.) Similarly, her son, Mr. Patterson, stated that he was comfortable being on the jury with his mother.
{¶10} The State offered the testimony of ten witnesses. Sexton did not present any evidence. The relevant testimony is summarized below.
{¶11} Jeffrey Bradshaw (Mr. Bradshaw), the president and owner of MJR testified about the layout of the building and explained the spatial relationship of the office area, the retail store, and the warehouse. (Tr.1 at 130-136.) He testified that the building had an alarm system and sixteen motion-activated surveillance cameras. (Tr.1 at 141-142.) The surveillance cameras focused on the store and the warehouse; there were no surveillance cameras in the office area. (Tr.1 at 142.) Six people had keys to the building: Mr. Bradshaw, Mark Laufersweiler (Mr. Laufersweiler), Deborah Raines (Ms. Raines), Ms. Roberts, Ms. Renner, and the IT manager, Raul Zendejas (Mr. Zendejas). (Tr.1 at 144.)
{¶12} Mr. Bradshaw explained that the company safe, which was used to make night deposits from the store sales, was located in the office part of the building, near the restroom area, in a room called exercise room or the safe room. (Tr.1 at 140, 156; Ex. 1.) The safe had a combination and an arm lock. (Tr.1 at 141.) There were five people who were authorized to access the safe: Mr. Bradshaw; his partner, Mr. Laufersweiler; their accountant, Cathy Testa (Ms. Testa); the retail store manager, Ms. Roberts; and the assistant store manager, Ms. Renner. (Tr.1 at 141.) After the theft incident at issue, Mr. Bradshaw learned
{¶13} Mr. Bradshaw explained that the office area was accessible to the employees during working hours, if they had an issue, to come in and speak with someone in the office. (Tr.1 at 143-144.) He stated that the offices were physically accessible after hours but you weren‘t supposed to be in areas where you weren‘t supposed to be. (Tr.1 at 144.) Some doors in the building required an access code, so that unauthorized people did not enter the offices. (Tr.1 at 134-136.) In particular, the warehouse staff could not get into the office area unless they knew the access code. (Tr.1 at 135.) Mr. Bradshaw testified that any employee who needed to go through the doors to reach into the office area would get the code. (Tr.1 at 146.)
{¶14} Mr. Bradshaw testified that Sexton‘s work hours were Monday through Friday, 8:00 a.m. until 4:45 p.m. (Tr.1 at 139.) Mr. Bradshaw admitted that Sexton had free rein to go about the entire premises, and could possibly enter the office areas to meet with his supervisor, Ms. Raines. (Tr.1 at 167-168.) There was no written employee policy regarding office access and Sexton had never been told that he was not allowed in the office area. (Tr.1 at 170.)
{¶15} Mr. Bradshaw learned about the theft on Monday, March 19, 2012. (Tr.1 at 159.) He testified that before reporting the incident to law enforcement, an internal investigation was conducted to determine the amount of missing
{¶16} Mr. Bradshaw testified that he was not aware of any prior incidents when money would be missing in his company. (Tr.1 at 170-171.) He testified that he had been informed about a prior issue with Sexton‘s job performance, where he might have been involved in some cash transactions without reporting them to the company‘s management. (Tr.1 at 171-172.)
{¶17} Mr. Bradshaw was asked about the accuracy of Sexton‘s Social Security number, as it was written on his W-4 form. (Tr.1 at 162.) Defense counsel objected to this question and to Mr. Bradshaw‘s testimony that it was not Sexton‘s correct Social Security number. (Tr.1 at 162-164.) This testimony was stricken from the record and the trial court instructed the jury to disregard it. (Tr.1 at 164.)
{¶18} Ms. Renner testified that she had worked as the assistant manager for MJR‘s retail store in March 2012. (Tr.1 at 175.) She was responsible for closing out the registers at the end of the day. (Id.) The other person authorized to do that was Ms. Roberts, who was the store manager. (Tr.1 at 191.) Ms. Renner testified that all doors that accessed the office area required a key code. (Tr.1 at 178-179.) She stated that [a]nyone that worked there knew the key codes to get to the office, and that the bathroom located there was accessible to employees, but nobody except for her should have been in the far hallway where the safe was
{¶19} Ms. Renner worked on the evening of Friday, March 16, 2012. While describing the recording of the video surveillance from that time, Ms. Renner testified that before leaving the store, she emptied the registers, put the money, checks, and credit card receipts in three bank bags, and carried the bank bags into the office area to place them in the company safe. (Tr.1 at 188-192.) No one else was back in the safe room with her. (Tr.1 at 201.) The video showed another employee, identified as Donna, go through the door leading from the office area. (Tr.1 at 192-193.) Ms. Renner was unable to specify where Donna was coming from, but she explained that this door was used to access the employee restroom. (Tr.1 at 193.) When all employees were ready to leave, they gathered in the lobby to perform a bag check before they left the building. (Tr.1 at 192.) The bag check was a loss prevention practice, where the employees checked each other‘s bags before leaving the building to assure that there was no store merchandise in anybody‘s bag. (Tr.1 at 192-193.) Everyone left the
{¶20} On cross-examination, Ms. Renner admitted that performing the bag check at the end of the day did not include checking coat pockets, or pants pockets, to see whether anybody was taking money out from the store. (Tr.1 at 196.) She confirmed that all employees who left the store with her that evening had the access code to the office and none of them was searched to see whether they had the store‘s money with them that evening. (Tr.1 at 198.) She also explained that in March 2012, the safe was malfunctioning and therefore, they would place the monies in the safe, but [they] didn‘t lock it. (Tr.1 at 197.) She admitted that the safe was left unlocked for the night on March 16, 2012. (Tr.1 at 197.)
{¶21} Ms. Renner testified that she had no personal knowledge of who took the money from the safe after she had put it in there on March 16, 2012. (Tr.1 at 200-201.) She was not aware of any incidents prior to March 16, 2012, when any funds would be missing at MJR. (Tr.1 at 199.) The defense counsel elicited testimony indicating that Ms. Renner stopped working for MJR a week following the theft incident, upon securing employment at another place. (Tr.1 at 200.) She had put in her two weeks’ notice the week before the theft incident. (Id.)
{¶23} Ms. Roberts, who was the retail store manager at MJR, testified that she was responsible for overseeing employees and collecting money at the end of the night. (Tr.1 at 204-205.) She testified that she had worked with Ms. Renner and never had any problems with her. (Tr.1 at 205-206.) She also testified that Sexton was really nice and he seemed like a good employee. (Tr.1 at 210.)
{¶24} Ms. Roberts confirmed Ms. Renner‘s testimony about the bag checks, which did not include checking coat pockets or pants pockets. (Tr.1 at 207, 212.) She testified about the safe, which was located in the coffee room and verified Ms. Renner‘s testimony about the safe not working properly in March 2012, admitting that they would put money in the safe without locking it. (Tr.1 at 208.) Ms. Roberts confirmed that most of the employees had the keypad number to access the office area. (Tr.1 at 206.) She testified that it was the management‘s position that no employee was to go back into the office area after hours except the manager, who could only go there to put the money in the safe. (Tr.1 at 206-207.) When asked about how that policy was expressed, Ms. Roberts stated, It was just kind of something that they came up with. It was something that I always followed and all the management followed. (Tr.1 at 207.)
{¶26} Mr. Machado testified next. He worked for MJR on Monday, March 19, 2012; his job involved cleaning. (Tr.1 at 217-218.) That morning, he performed his routine, which included cleaning the men‘s bathroom. (Tr.1 at 218.) When he was about to clean the toilet in the men‘s bathroom, which was used by the customers, he saw a package stuck inside. (Tr.1 at 218.) He realized that it could cause a problem to the toilet, so he removed it with his hand. (Tr.1 at 218-219.) What he retrieved was four checks. (Tr.1 at 219.) The checks did not say void; therefore, he thought that those checks were good. (Id.) Because he did not know the manager or the owner, he put the checks on the counter beside a cash register so that the person would know -- would say if they were good or not. (Tr.1 at 219.)
{¶28} Ms. Testa knew Ms. Renner as a coworker, but the two had no closer personal relationship. (Tr.1 at 240.) She was aware that Ms. Renner had given her two weeks’ notice and stopped working at MJR approximately a week after the incident. (Tr.1 at 240-241.) Ms. Testa was also familiar with Sexton; she had seen him at MJR, but she did not know him well. (Tr.1 at 241.)
{¶29} Ms. Testa testified that it was her practice on Monday mornings to go to the safe, get out the bank bags, run daily reports, and do reconciliation. (Tr.1 at 228.) On Monday morning, March 19, 2012, she was informed that the safe was found open ajar a little bit. (Tr.1 at 230, 237.) When she went to get the bags out of the safe, she noticed that there was no cash in any of the three bags that were there. (Tr.1 at 230.) She informed Mr. Laufersweiler about the missing money and they called the store managers to verify that they had put cash in the
{¶30} Ms. Testa testified that Sexton came to her office that day, when the checks were drying on her desk. (Tr.1 at 236.) At the time of the March 2012 incident, she was not aware of any prior situations when money had been missing at MJR. (Tr.1 at 238.)
{¶31} Mr. Laufersweiler, co-owner of MJR, and Mr. Bradshaw‘s business partner, testified about security procedures at MJR. He explained that all employees entered and exited through the main entrance, where the bag check was performed. (Tr.1 at 249.) There was also a public entrance for the store. (Tr.1 at 249.) His testimony about the bag check procedure was similar to the testimony of the previous witnesses, with the additional information that people would open up coats; but looking in pockets, no. We don‘t go to that extent. (Tr.1 at 254-255.) Mr. Laufersweiler did not know of prior thefts involving MJR‘s employees before March 17, 2012. (Tr.1 at 246.)
{¶33} Mr. Laufersweiler explained that although there was occasional overtime work when they were busy, that particular Saturday was not a work overtime day for the warehouse employees. (Tr.1 at 250.) With respect to the employees’ access to the office area, Mr. Laufersweiler stated:
Generally on Saturdays, weekends, other than normal business hours when we‘re in the office, it is generally off-limits in the office area. There‘s really no reason for a warehouse employee to be in the office. 8:00 to 5:00 when we‘re there, it‘s okay; but if it‘s after-
hours or on Saturday, there‘s really no reason for that. And that‘s kind of a well-known policy with everybody. We also have -- kind of to emphasize that, we have a keypad door opener for doors that are going to the warehouse into the office, so you would enter a code and then the door would unlock and you could go in and out. Really, that‘s just to prohibit anybody from going in and out of the office area.
(Tr.1 at 250-251.) On cross-examination, Mr. Laufersweiler confirmed that there was no written policy regarding office access, although he stated, everybody knows that. (Tr.1 at 255.) He did not recall ever telling Sexton that he was not allowed in the office area on weekends. (Tr.1 at 256.) He restated that most of his employees had the code for the door to the office area and they had access to get into the office area if they wanted to get in there. (Tr.1 at 256.)
{¶34} Mr. Zendejas, who was the person responsible for managing the security cameras at MJR, testified about the location of the sixteen cameras within the building. (Tr.1 at 259-260.) He explained that the cameras are located on the entrances of the building, over the four registers, over the store, and throughout the warehouse area. (Tr.1 at 259-260.)
{¶35} Mr. Zendejas testified that on Monday, March 19, 2012, he was asked to review videos from the security cameras to find out who placed the wet checks on the counter by the registers. (Tr.1 at 260-261.) He first reviewed the videos from the morning of Monday, March 19, 2012, paying attention to who would have access to the back office area, where the safe was located. (Tr.1 at
{¶36} Mr. Zendejas testified, after I saw what had happened, I started to, you know, download them to give them to, you know, law enforcement and to kind of get -- piece together a little bit better a timeline of things that were happening so I could, you know, put it together a little bit easier. (Tr.1 at 264.) Mr. Zendejas described the video footage as it was being played to the jury. The first video clip was from the afternoon of Saturday, March 17, 2012, at 1:50 p.m. (Tr.1 at 265.-266.) It showed the store door entrance and Sexton walking into the store with something white, looking like a rag, in his hand. (Tr.1 at 265-266, 268-269.) Mr. Zendejas described further footage as it was showing Sexton inside the store, heading toward the warehouse area. (Tr.1 at 267.) Once Sexton was in the warehouse area, he could be seen heading to his desk, which was situated in the
{¶37} Mr. Zendejas testified that he had reviewed all of the surveillance video for March 17, 2012. (Tr.1 at 271.) He explained that the cameras at MJR were motion activated and only recorded when there was movement in front of them. (Tr.1 at 272.) There were no cameras in the actual office area where the safe was. (Tr.1 at 273.)
{¶38} Deputy Aaron McKinnon (Deputy McKinnon), testified that he had responded to a theft complaint from MJR on Wednesday, March 21, 2012. (R. at 275.) When he arrived at MJR, the owner of the business told him that some money had been stolen from a money bag. (Tr.1 at 276.) Deputy McKinnon took statements from people on the scene, obtained some information, and completed a report. (Tr.1 at 276.) He was told that Sexton was a suspect in the
{¶39} Detective Jeff Stiers (Detective Stiers), from the Union County Sheriff‘s Office, conducted an investigation about the theft incident at MJR in March 2012. (Tr.2 at 12-13.) He spoke with Mr. Bradshaw first and was informed that Sexton was a potential suspect. (Tr.2 at 13.) Detective Stiers spoke to Sexton and asked him to describe his days of Friday, March 16, 2012, and Saturday, March 17, 2012, and then asked whether Sexton knew anything about the theft of the cash. (Tr.2 at 14-15.) Detective Stiers testified that Sexton had denied taking the money and explained that his reason for being at MJR on March 17, 2012, was the need to pick up his wallet, which he had left on Ms. Raines‘s desk in her office. (Tr.2 at 16.) Sexton told Detective Stiers that after he had picked up his wallet, he went into the bathroom because he was feeling sick from what he had eaten the night before. (Tr.2 at 16.) An audio recording of that interview was played for the jury. (Tr.2 at 17.) Sexton also explained that the item he had in his hand on Saturday, March 17, 2012, when he came to MJR was a tank top. (Tr.2 at 18-19.) Detective Stiers then explored the story Sexton gave him with respect to picking up his wallet from Ms. Raines‘s office. (Tr.2 at 19.)
{¶40} Detective Stiers testified that he had asked Mr. Zendejas for all the videos showing anyone who entered the men‘s restroom from the time when Ms.
{¶41} During his investigation, Detective Stiers was advised that MJR‘s safe was not being kept locked. (Tr.2 at 23.) He knew that almost all MJR‘s employees had the key code for the office area and that multiple employees had access to the safe room, where a coffee pot was located. (Tr.2 at 24.) He admitted that since there were no video cameras in the office area, no surveillance video actually showed Sexton around the safe or in Ms. Raines‘s office. (Tr.2 at 22-23.) Detective Stiers testified that fingerprints were not taken off of the safe. (Tr.2 at 23.) He explained, I was not called down there until March 22nd. From that point we have chain of custody issues * * *. (Tr.2 at 23.)
{¶42} Detective Stiers testified that there was another individual suspected of the theft, Ms. Renner. (Tr.2 at 19, 22.) It was Sexton who brought Ms. Renner to his attention as a potential suspect in the case. (Tr.2 at 24.) The investigation
{¶43} Ms. Raines testified that she had worked at MJR as a manager of the distribution center and was responsible for managing and scheduling employees for receiving, processing, and transportation. (Tr.2 at 26.) Her office was located in the office area of MJR, across from the room in which the safe was located. (Tr.2 at 27, 34.) When at MJR, Ms. Raines worked Monday through Friday, from 6:00 or 6:30 a.m. until 4:30 or 5:00 p.m. (Tr.2 at 30.) She had a key to the building and an access to the security lock, so that she could open the building for the employees in the morning. (Tr.2 at 30.) She testified that a total of five people had keys and access to get in and out of the building, which included herself, the two owners, Mr. Zendejas, and an individual named John Bumm. (Tr.2 at 30-31, 37-38.) She never gave Sexton access to open the building. (Tr.2 at 38.)
{¶44} Ms. Raines testified that she was instrumental in hiring Sexton at MJR, as she had known him from prior jobs. (Tr.2 at 28-29.) Sexton had called her saying that he needed employment and she suggested him to Mr. Bradshaw and Mr. Laufersweiler, who made the decision to hire him. (Tr.2 at 28-29.) She was also his supervisor and testified that she did not have any problems with his work performance. (Tr.2 at 36.) Ms. Raines testified about Sexton’s job responsibilities and his daily routine. Sexton’s office was “[o]n the floor in the warehouse,” but he would typically come to her office “just to kind of see what
{¶45} Ms. Raines met with Sexton on Friday, March 16, 2012, but she did not recall meeting with him “near the close of business or at the end of the day.” (Tr.2 at 36, 41.) She did not recall seeing Sexton’s wallet on her desk following the meeting on March 16, 2012. (Tr.2 at 36.) Ms. Raines could not confirm Sexton’s version of events, which he gave to Detective Stiers, in which he claimed that he “would always take his cell phone and his wallet out when he came to meet with [her.]” (Tr.2 at 35.) Ms. Raines stated, “I never remember his wallet. I remember his cell phone because he would check his cell phone. I remember that, but I don’t -- I mean, I couldn’t tell you what his wallet even looks like or looked like.” (Tr.2 at 35.) She later added, “I have definite recollection that I never saw him place his wallet on my desk, never.” (Tr.2 at 43.) She denied a possibility that the wallet could have been there unnoticed by her and testified that she “would straighten up [her] office every day at the end of the day.” (See Tr.2 at 43-45, 47.) Further explaining, Ms. Raines stated that although she remembered Sexton putting his cell phone on her desk, right in front of him, she never saw his wallet there. (Tr.2 at 46, 50-51.) He never forgot to take the cell phone with him after the meeting. (Tr.2 at 46.)
{¶47} Ms. Raines confirmed that all employees had access to the offices through the keypad doors. (Tr.2 at 32.) She explained, however, that not all employees came into the office area. (Tr.2 at 38-39.) Apart from the “office people, which were five or six people,” the only other people who came to the office area included Sexton, and “maybe a couple of other people in the warehouse.” (Tr.2 at 39.) Ms. Raines testified that typically, people were not “in and out of the office area from the warehouse.” (Tr.2 at 39.) She could not remember whether the assistant store manager, Ms. Renner, was normally in the office area, although she had access to it. (Tr.2 at 39.) Ms. Raines never actually saw Ms. Renner in the safe room. (Tr.2 at 39.)
{¶48} Ms. Raines testified that Sexton did not have “special access” to the office area “for after-hours or Saturdays or anything like that.” (Tr.2 at 33.) He did not have keys to the building. (Tr.2 at 33.) According to Ms. Raines, Sexton worked overtime very infrequently and it would be on weekdays, only if his supervisor was there. (Tr.2 at 33.) There was no need for Sexton to access the business offices after work hours, even if he was working overtime. (Tr.2 at 34.)
Conclusion of Trial
{¶49} Following Ms. Raines’s testimony, the State rested and the defense made a
{¶50} The defense did not present any evidence, but it renewed its motion for acquittal, which was again denied. (Tr.2 at 64-65, 69.) After the closing arguments and jury instructions, the case was submitted to the jury. The jury
Sentencing and Appeal
{¶51} At sentencing, the trial court relied on the presentence investigation report (“PSI”), which disclosed that Sexton had “a rather substantial traffic record,” as well as several prior convictions. (Sentencing Tr. at 8, Nov. 26, 2013.) No objections were raised to the PSI at sentencing by either Sexton or his counsel. The trial court found that theft and burglary were allied offenses subject to merger. Therefore, upon the State’s election, the trial court sentenced Sexton to prison for seven years on count three, burglary and seventeen months on count two, safecracking. (R. at 73.) The trial court ordered the sentences to run consecutively to each other. (Id.)
{¶52} The case is now before us on review of the following assignments of error:
- THE JURY LOST ITS WAY WHEN REVIEWING THE EVIDENCE, RESULTING IN A VERDICT THAT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE SUFFICIENCY OF THE EVIDENCE.
- THE TRIAL COURT ERRED WHEN IT RELIED ON INACCURATE INFORMATION IN THE PRE-SENTENCE INVESTIGATION REPORT TO FASHION APPELLANT’S SENTENCE.
APPELLANT WAS DEPRIVED EFFECTIVE ASSISTANCE OF COUNSEL RESULTING IN APPELLANT NOT RECEIVING A FAIR TRIAL.
B. Law and Analysis
First Assignment of Error—Sufficiency and Manifest Weight of the Evidence
{¶53} In this assignment of error, Sexton alleges that his conviction for burglary is against the sufficiency and the manifest weight of the evidence because there is no evidence of trespass, which is an element of burglary. He further asserts that his convictions for theft and safecracking cannot stand because there is no direct evidence of Sexton entering the office area where the safe was kept, opening the safe, and removing money from it. We first review the sufficiency of the evidence for each of the counts on which Sexton was found guilty.
1. Sufficiency of the Evidence
{¶54} When reviewing a criminal case for the sufficiency of the evidence, “our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence submitted at trial, if believed, could reasonably support a finding of guilt beyond a reasonable doubt.” In re Willcox, 3d Dist. Hancock No. 5-11-08, 2011-Ohio-3896, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). We look at the evidence in the light “most favorable to the prosecution” and will affirm the conviction if “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
a. Burglary
{¶55} Under the indictment filed by the State, the burglary conviction required evidence that Sexton (1) “by force, stealth, or deception”; (2) trespassed “in an occupied structure or in a separately secured or separately occupied portion of an occupied structure”; (3) “when another person other than an accomplice of the offender [was] present”; (4) “with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense.”
{¶56} There is no dispute that the MJR building was an occupied structure. See
{¶57} Sexton’s argument focuses on the actual act of trespassing in that separately secured business office area of MJR. He argues that the evidence was insufficient to support a finding of trespass because the testimony at trial established that Sexton “had never been told he was not permitted to be in the office area when he was in the building, including times he may not have been working and the building was open to the public.” (App’t Br. at 5.) Yet, in a criminal trespassing prosecution, “[n]o requirement exists that ‘no trespassing’ signs be posted on property, or that the person in control or possession of property notify everyone in the world that they are not welcome to come onto the property.” State v. Janson, 183 Ohio App.3d 377, 2009-Ohio-3256, 917 N.E.2d 296, ¶ 16 (1st Dist.).
- Knowingly enter or remain on the land or premises of another;
- Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows the offender is in violation of any such restriction or is reckless in that regard;
- Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access.
- Being on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either.
(Emphasis added.)
{¶59} It is clear and not disputed that Sexton “[k]nowingly enter[ed] or remain[ed] on the land or premises of another,” when he entered the business offices area of MJR on March 17, 2012.
{¶60} The only remaining issue for the sufficiency of the evidence to support the trespass element is lack of privilege. “ ‘Privilege’ means an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity.”
{¶61} Sexton would imply that as an employee with the access code to the door, he was privileged to enter the office area on Saturday, March 17, 2012. This argument is not supported by relevant case law. In State v. Risner, 3d Dist. Hardin No. 6-91-21, 1992 WL 195311 (Aug. 4, 1992), we found the trespass element satisfied under
{¶62} The Eighth District Court of Appeals sustained four burglary convictions challenged for the sufficiency of the evidence as to the trespass
{¶63} In State v. Cooper, 168 Ohio App.3d 378, 2006-Ohio-4004, 860 N.E.2d 135 (2nd Dist.), the defendant argued that the facts negated the trespass element of the burglary conviction. Cooper walked into a store during the store’s business hours. Id. at ¶ 9. Inside the store, he walked through a door, which was closed, but not locked, and which bore a sign reading, “ ‘Employees Only.’ ” Id. The Court of Appeals agreed that no trespass occurred when Cooper remained in the store’s public area because he had a privilege to be there. Id. at ¶ 14. But when Cooper entered the area marked as “ ‘Employees Only,’ ” he committed
{¶64} In State v. Flak, 5th Dist. Ashland No. 2004-COA-038, 2005-Ohio-1474, the defendant attempted to challenge his burglary conviction on the same basis. The evidence showed that Flak entered a medical office building while the employees were in a lunch room. Id. at ¶ 3. The office was described as consisting “of a large waiting room with a sliding glass window at the reception desk and a door which leads to the nurses’ station, exam rooms, doctors’ offices and the employee break/lunch room.” Id. There was a sign on the closed sliding
{¶65} In the instant case, the State provided evidence showing that Sexton had no reason to enter the normally restricted office area, which was closed both to the general public and to MJR’s employees outside of the normal office hours. Therefore, a reasonable jury could find that Sexton exceeded the scope of his privilege, which allowed him to be in MJR’s retail store on Saturdays and in the
{¶66} The Fourth District Court of Appeals found evidence sufficient to support a finding that the defendant lacked privilege in a case where the defendant “had stayed at the residence on two or three occasions and had entered the house and waited for [the victim] to come back from work on one or two occasions.” State v. Clelland, 83 Ohio App.3d 474, 490, 615 N.E.2d 276 (4th Dist.1992). The court held that the “privilege to enter the premises was not unqualified, but was restricted to times when [the victim] was present or expected back shortly.” Id. Because the situation at issue did not involve the time when the victim was present or expected back shortly, it was reasonable to conclude that the defendant lacked privilege to enter the premises. Id. By analogy, Sexton’s privilege to enter the business office area “was not unqualified,” but was restricted to times when the business office area was operating, Monday through Friday, between 8 a.m. and 5 p.m. Therefore, the jury could reasonably conclude that he exceeded that limited privilege when he entered the business office area on Saturday, March 17, 2012.
{¶67} The overview of Ohio cases and the application of the law to the facts before us dictates a conclusion that the evidence, viewed in the light most favorable to the prosecution, was sufficient to support a finding beyond a reasonable doubt that Sexton was not privileged to be in the business offices area on Saturday, March 17, 2012.
{¶68} Since Sexton challenges convictions as to theft and safecracking on the same bases, we analyze these two counts together. In order to sustain the convictions for theft, as charged in the Indictment, the State had to prove that Sexton “knowingly obtain[ed] or exert[ed] control over either the property or services”; “with purpose to deprive the owner of property or services”; “[w]ithout the consent of the owner or person authorized to give consent.”
{¶69} We start with recognizing the well-settled law that circumstantial evidence has the same probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 2001-Ohio-4, 739 N.E.2d 749 (2001); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus; State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-Ohio-3524, ¶ 73, quoting Treesh at 485. We have previously recognized that circumstantial evidence may be “more certain, satisfying and persuasive than direct evidence.” State v. Fisher, 3d Dist. Auglaize No. 2-10-09, 2010-Ohio-5192, ¶ 27, quoting State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990). For example, in State v. Tusing, 3d Dist. Seneca No. 13–12–24, 2012-Ohio-5945, ¶ 23-24, we found that circumstantial evidence was sufficient to prove criminal trespass beyond a reasonable doubt, even though there was no eye-witness testimony or any physical evidence that placed the defendant or his truck on the victim’s property.
{¶70} The Tenth District Court of Appeals upheld safecracking, theft, and breaking and entering convictions, which were based on circumstantial evidence only. State v. Abdul-Rahman, 10th Dist. Franklin Nos. 06AP-783, 06AP-784, 2007-Ohio-2386. In that case, three ProCare stores were burglarized and money was taken from the safes located in each store, on or about October 27, 2005. Id. at ¶ 12. The defendant, Abdul-Rahman, was an employee of ProCare as a manager-in-training and had access to the stores and the safes. Id. He was terminated on October 27, 2005. Id. Later that evening, he was seen at two out of the three locations. Id. The investigation indicated that Abdul-Rahman was the only person with keys to all three locations and that the stores did not show any signs of forced entry. Id. at ¶ 12, 14-15. The court held that the circumstantial evidence was sufficient to sustain convictions for theft, safecracking, and breaking and entering. Sexton’s case is very similar to Abdul-Rahman’s. As a warehouse manager, he had means of access to the office area and the safe room. He was seen entering the office area before the money was discovered missing and he was
{¶71} The Eleventh District Court of Appeals sustained a conviction for theft based on circumstantial evidence. State v. Pistillo, 11th Dist. Lake No. 2003–L–183, 2004-Ohio-6333. Pistillo was a former employee of a company that provided personal aides to disabled individuals. Id. at ¶ 9. Through her employment, she had a “swipe key card,” as well as a key to access the victims’ apartment, which she had not returned upon her termination from the company four days earlier. Id. at ¶ 9, 23. The building manager’s report indicated that the key card assigned to Pistillo was used to enter the building on the morning of the discovered theft. Id. Furthermore, since she had worked with the victims before her termination, she knew their schedule and was familiar with their apartment. Id. at ¶ 23. The court held that all of the above circumstantial evidence was sufficient to infer that the defendant took the money that was missing from the victims’ residence. Id. at ¶ 29. Like the defendant in Pistillo, Sexton had access to the office area and was reported entering the area on Saturday, March 17, 2012. Additionally, he knew the layout of the office and was aware of the safe lock malfunctioning in March 2012. He also knew that no one would be in the office on Saturday, which was a day when no employees were supposed to be there.
{¶72} The State showed that Sexton was the only person who entered the business office area at the relevant times between Friday evening, March 16, 2012,
{¶73} For all of the above reasons, we reject Sexton’s allegations that his convictions for burglary, theft, and safecracking were not supported by sufficient evidence.
2. Manifest Weight of the Evidence
{¶74} In addition to arguing that his convictions were not supported by sufficient evidence, Sexton alleges that they were against the manifest weight of the evidence. The question of manifest weight of the evidence concerns an “effect in inducing belief.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Therefore, it is not subject to a mathematical analysis. Id. When reviewing a conviction challenged as being against the manifest weight of the evidence, an appellate court acts as a “thirteenth juror” and may disagree with the jury’s resolution of the conflicting testimony. Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But the appellate court must give due deference to the findings of the jury, because
[t]he fact-finder occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’s reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact-finder.
(Alteration omitted.) State v. Dailey, 3d Dist. Crawford, No. 3-07-23, 2008-Ohio-274, ¶ 7, quoting State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist.1998). Therefore, an argument that a conviction is against the manifest weight of the evidence will only succeed if the appellate court finds that “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.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶75} There were no significant conflicts in the evidence presented in this case, as Sexton did not offer any witnesses. Many of his allegations concerning the manifest weight argument are the same as the ones challenging sufficiency of the evidence, which we have already analyzed above.3 He additionally argues that the evidence used against him could have as easily implicated Mr. Machado in the
{¶76} With respect to Mr. Machado, no evidence indicated that he had ever entered the business office area or that he had ever been seen in the vicinity of the safe room. In fact, there was no specific testimony that Mr. Machado knew the key code to access the office area. There was no testimony that Mr. Machado was present at MJR on a day when he was not assigned to work there. Moreover, Sexton had an opportunity to question Mr. Machado and develop the theory that Mr. Machado committed the crimes, but he did not do that. Therefore, his suggestions that the evidence would implicate Mr. Machado are mere speculations.
{¶77} As to the credibility of the video surveillance evidence, Mr. Zendejas was, likewise, subject to cross-examination about how he selected videos to provide to the law enforcement officers. The jury had an opportunity to assess Mr. Zendejas‘s testimony for its credibility. Detective Stiers testified that he had asked Mr. Zendejas for video evidence showing anyone entering the men‘s restroom during the relevant times. There was nothing provided at trial to show that parts of the video surveillance, which could implicate another person, were
{¶78} The suggestions of “holes” in the State‘s case, or of other people being involved in the theft, are not supported by the evidence in the record. Conversely, many additional facts cast doubt on Sexton‘s asserted innocence. Sexton walked around the warehouse area on a day when he was not scheduled to work and when no one else was there. He walked into the business office when no one was there, in violation of the well-known policy that access to this area was limited to business hours, Monday through Friday, between 8 a.m. and 5 p.m., and to legitimate business reasons only. His assertions of going to the office to retrieve his wallet were contradicted by the testimony of Ms. Raines, who repeatedly stated that he never took his wallet out of his pocket in her office. She repeatedly denied a possibility of Sexton‘s wallet being left in her office on Friday, March 16, 2012. The video evidence showed Sexton walking around the retail store, away from the registers by which Ms. Roberts and other employees could see him. He did not look at merchandise, which the jury could reasonably interpret as an indication that he did not come to the retail store to shop. Furthermore, his use of the retail store entrance instead of the employee entrance, which would subject him to the standard bag search, could likewise have been used by the jury to weigh against credibility of his version of events.
{¶79} Considering all the facts discussed in our analysis of the sufficiency of the evidence argument, the additional facts mentioned here, and the lack of conflicting evidence presented at trial, we cannot determine that the jury lost its way in finding Sexton guilty.
{¶80} For all of the foregoing reasons, we overrule the first assignment of error, which challenges the sufficiency and the weight of the evidence.
Second Assignment of Error—Inaccurate Information in the Presentence Investigation Report
{¶81} In this assignment of error Sexton alleges that he was prejudiced by the inaccurate PSI, on which the trial court relied in fashioning his sentence. Sexton points to two “factual mistakes.” (App‘t Br. at 10.) Both concern Sexton‘s criminal record.
{¶82} The first problem discussed by Sexton relates to a 1998 conviction from Marion County. On page 8 of the report, the PSI investigator noted that on June 11, 1998, Sexton was convicted of two counts of forgery, one count of receiving stolen property, and one count of theft, in case number 1998-CR-0149. (PSI Report, Nov. 12, 2013.) Then, on page 13 of the same report, the section entitled “supervision adjustment” included the following statement:
On 6-9-98, the defendant was convicted in the Marion County Common Pleas Court case number 98-CR-0149 of count 1 Theft, F5, count 2 Safecracking, F4, count 3 Burglary, F2, and count 4 Identity Fraud, F5.
Presentence investigation in this case reveals the following about your past criminal history in addition to a rather substantial traffic record: 6/9 of ‘98, you were convicted in the Marion County Common Pleas Court, case number 98-CR-0149 of Count one, theft; count two, safecracking; count three, burglary; and count four, identity fraud.
(Sentencing Tr. at 8.)
{¶83} The second mistake to which Sexton refers in this assignment of error concerns a Licking County case. On page 11 of the PSI report there is record of a charge from April 27, 2012, in case number 2012-CR-00220, for receiving stolen property. (PSI Report, Nov. 12, 2013.) The charge was scheduled for a jury trial on December 20, 2012, and it was dismissed on December 21, 2012. (Id.) On page 12, another Licking County case is listed, from October 24, 2013, number 2013-CR-00646. This case included two charges: (1) burglary with firearm specification, and (2) receiving stolen property. (Id.) The case is listed as pending as of the date of the report. (Id.) At the sentencing hearing, the trial court stated, “ODRC gateway portal shows that you were convicted of receiving stolen property on 12/3 of ‘12 in Licking County.” (Sentencing Tr. at 9.) The PSI report does not show a conviction in Licking County from December 3, 2012, and
{¶84} Referencing the two mistakes read by the trial court into the record, Sexton calls into question the entire PSI report. We cannot conclude that the PSI report was entirely incorrect, however, as only one mistake is properly pointed out by Sexton, the one referring to the Marion County case. The other alleged mistake does not appear in the PSI report and we cannot speculate as to whether the trial court misspoke at sentencing, or it relied on another document, which is not before us. We limit our review of the issue to the record properly before us, which includes the PSI report and the sentencing transcript.
{¶85}
As a general rule an appellate court will not consider an alleged error that the complaining party did not bring to the trial court‘s attention at the time the alleged error is said to have occurred. This rule is a product of our adversarial system of justice. “Its purpose is practical: to prevent the defensive trial tactic of remaining silent on a fatal error during trial with the expectation of demanding a reversal on appeal if the verdict is guilty.” State v. Craft (1977), 52 Ohio App.2d 1, 4-5, 6 O.O.3d 1, 3, 367 N.E.2d 1221, 1224. The rule is also consistent with the structure of our court system. An appellate court is not to be the first court to decide an issue; it is to review decisions made by the trial court after the lower court has had an opportunity
to hear the arguments of the parties. “The traditional appeal calls for an examination of the rulings below to assure that they are correct, or at least within the range of error the law for sufficient reasons allows the primary decision-maker.” Carrington, Meador & Rosenberg, Justice on Appeal (1976) 2.
State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992); accord State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15 (2014) (recognizing the “well-established rule” that failure to call an error to the attention of the trial court results in forfeiture of that error on appeal). This general rule is subject to
{¶86} The standard of review under plain error “is a strict one.” State v. Murphy, 91 Ohio St.3d 516, 532, 747 N.E.2d 765 (2001).
“[A]n alleged error ‘does not constitute a plain error or defect under
Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise.’ ” We have warned that the plain error rule is not to be invoked lightly. “Notice of plain error underCrim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id., quoting State v. Campbell, 69 Ohio St.3d 38, 41, 630 N.E.2d 339 (1994), and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraphs two and three of the syllabus. Under the plain error standard, “the defendant bears the burden of demonstrating that a plain error affected his substantial rights” and “[e]ven if the defendant satisfies this burden, an appellate court has discretion to disregard the error and should correct it only to ‘prevent a manifest miscarriage of justice.’ ”
{¶87} In Campbell at 41-43, the Ohio Supreme Court held that where a defendant failed to object to the use of the PSI report in the trial court, the issue was forfeited on appeal absent plain error. In another case, the Ohio Supreme Court refused to apply the plain error analysis to reverse the trial court‘s sentencing decision, where a defendant on appeal argued that information included in his PSI report “would not have been admissible if offered independently as evidence,” but failed to object to its admission in the trial court. State v. Bradley, 42 Ohio St.3d 136, 140, 538 N.E.2d 373 (1989).
{¶88} Here, Sexton does not even allege that a plain error occurred or that his substantial rights have been affected in any way. The Ohio Supreme Court has recently refused to engage in a plain error review where the defendant did not make any attempt to demonstrate plain error on appeal. See Quarterman at ¶ 20-21. Therefore, under the benchmark provided by the Ohio Supreme Court that “[n]otice of plain error * * * is to be taken with the utmost caution,” Murphy at 532, and that the defendant carries the burden “of demonstrating that a plain error
{¶89} For all of the foregoing reasons, we hold that Sexton‘s allegations do not warrant reversal of his sentence and we overrule the second assignment of error.
Third Assignment of Error—Ineffective Assistance of Counsel
{¶90} In his last assignment of error Sexton alleges multiple grounds for a claim that his trial counsel was ineffective. In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must first show that the counsel‘s performance was deficient in that it fell “below an objective standard of
{¶91} With this standard in mind we address Sexton‘s particular assertions about his counsel‘s ineffectiveness.
1. Social Security Number Evidence
{¶92} As mentioned in the introductory part of this opinion, Sexton was initially charged with identity fraud. This claim was dismissed prior to trial. During the trial, however, the State asked Mr. Bradshaw about accuracy of Sexton‘s Social Security number. Sexton‘s counsel objected to this questioning and the trial court ordered it stricken from the record. The jury was instructed to
Q: And what did your investigation consist of with respect to Mr. Sexton?
A: I ran him through the LEADS system, which is a computer system that we use to look people up, by the Social Security number that they provided for me for him.
Q: And were you able to find out any information about Mr. Sexton?
A: Not off that Social Security number, no.
Q: All right. Deputy, that‘s all I have. Thank you very much.
(Tr. at 277.)
{¶93} Sexton alleges that his trial counsel was ineffective in connection with the Social Security number evidence for two reasons. The first is failure to object to Deputy McKinnon‘s testimony. The second is failure to request a mistrial after Mr. Bradshaw‘s testimony and again, after Deputy McKinnon‘s testimony. Sexton argues that prejudicial evidence was presented to the jury through those two witnesses and because the evidence against him was “so flimsy and circumstantial * * *, every prejudicial remark tipped the scale toward a conviction.” (App‘t Br. at 17.)
{¶94} We do not agree that Mr. Valentine‘s failure to request a mistrial after Mr. Bradshaw‘s testimony would amount to a performance that falls “below an objective standard of reasonable representation” under Keith, 79 Ohio St.3d at
{¶95} Likewise, failure to object to Deputy McKinnon‘s statement and to request a mistrial after his testimony that he was unable to obtain any information about Sexton based on his social security number, does not amount to ineffective assistance. We have previously recognized that “failure to object to error, alone, is not enough to sustain a claim of ineffective assistance.” State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-Ohio-2128, ¶ 63, quoting Campbell, 69 Ohio St.3d at 52-53. “Because ‘objections tend to disrupt the flow of a trial, and are considered technical and bothersome by the fact-finder,’ competent counsel may reasonably hesitate to object in the jury‘s presence.” (Alterations omitted.) Campbell at 53, quoting Jacobs, Ohio Evidence (1989), at iii-iv. Therefore, it could have well been Mr. Valentine‘s reasonable trial strategy
{¶96} Similarly, Sexton failed to establish that a mistrial would have been granted had it been requested upon Deputy McKinnon‘s statement about lack of information on Sexton‘s Social Security number. “Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991); accord State v. Brewster, 157 Ohio App.3d 342, 2004-Ohio-2722, 811 N.E.2d 162, ¶ 39 (1st Dist.) (“A trial court should not order a mistrial merely because an error or irregularity has occurred, unless it affects the defendant‘s substantial rights.“). There are no indications that Sexton‘s trial was unfair.
{¶97} Accordingly, Sexton failed to establish that his trial counsel was ineffective in his handling of the Social Security number evidence.
2. Plea Agreement
{¶98} Sexton refers to a document filed with the court on the morning of the trial, October 23, 2013, captioned “Rejection of Plea Agreement.” (R. at 64.) He acknowledges that he discussed the plea offer with his counsel and that he signed the rejection. He alleges, however, that this is not what he “really wanted
{¶99} A claim of ineffective assistance based on the trial counsel‘s advice to reject a plea bargain requires a criminal defendant to “prove both deficient performance on the part of his counsel and that, but for his counsel‘s advice, there is a reasonable probability that he would have pleaded guilty.” Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir.2001), citing Turner v. State of Tenn., 858 F.2d 1201 (6th Cir.1988), judgment vacated on other grounds sub nom. Tennessee v. Turner, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), and Paters v. United States, 159 F.3d 1043, 1047 (7th Cir.1998). The United States Supreme Court established the following standard for satisfying the prejudice requirement in such circumstances:
a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer‘s terms would have been less severe than under the judgment and sentence that in fact were imposed.
Lafler v. Cooper, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012); accord Missouri v. Frye, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012); see also State v. Knapp, 11th Dist. Ashtabula No. 2012-A-0035, 2013-Ohio-870, ¶ 56 (applying the above standard). Additionally, the Seventh Circuit Court of Appeals required a criminal
{¶100} Although an argument such as Sexton‘s does not come before the courts often, our review of pertinent case law indicates that courts do not find ineffective assistance for advising the defendant not to take a plea bargain absent evidence that the counsel‘s advice fell below the standard of reasonable professional assistance and that it resulted in prejudice. See, e.g., State v. Fry, 9th Dist. Summit No. 26121, 2012-Ohio-2602, ¶ 12-21 (affirming denial of a petition for post-conviction relief where “[n]either the record nor the post-conviction relief exhibits support[ed] Fry‘s argument that he was constructively denied counsel at the plea bargaining stage” or that he would have accepted the plea); State v. Lei, 10th Dist. Franklin No. 05AP-288, 2006-Ohio-2608, ¶ 32 (holding that the defendant was not entitled to a new trial based on her claim of ineffective assistance that resulted in her decision not to plead guilty where the evidence showed that the defendant “‘was adamant about not taking a negotiated plea’ and that she was determined to proceed to trial“); United States v. Carry, 204 Fed.Appx. 216, 216-217 (4th Cir.2006) (rejecting a claim of ineffective assistance after “thoroughly reviewing the record,” which did not “conclusively demonstrate that Carry‘s counsel was ineffective” in advising the defendant not to plead guilty); cf. State v. Walker, 6th Dist. Lucas No. L-99-1383, 2000 WL 1878954
{¶101} A United States District Court in Mississippi reviewed allegations very factually similar to the ones made by Sexton, where the criminal defendant argued that his trial counsel was ineffective by advising him “that he should not plead guilty but proceed to trial,” and “that the case against him was weak.” Williams v. United States, N.D.Mississippi Nos. Civ. A. 3:97CV60-D, Crim. 4:93CR021-D, 1998 WL 378374, *2 (May 5, 1998), aff‘d, 204 F.3d 1115 (5th Cir.1999). The court held that no objective deficiency existed where no evidence showed that the trial counsel “failed to conduct a substantial investigation before offering the advice he did.” Id. Therefore, the “[c]ounsel‘s determinations and advice to proceed to trial were strategic choices.” Id.
{¶102} Nothing in the record indicates that Mr. Valentine gave Sexton any improper advice or that he misrepresented any facts or the law to him. Sexton does not allege that his decision not to plead guilty was anything else but his knowing, intelligent, and voluntary choice based on his trial counsel‘s belief that “it was going so well.” (App‘t Br. at 18.) He merely contends that he “wanted to take the deal,” but decided not to do so. Not only are these allegations
{¶103} Accordingly, Sexton failed to satisfy a claim of ineffective assistance of counsel based on the alleged improper advice to reject the plea offer.
c. Failure to Put on a Meaningful Defense
{¶104} Sexton makes multiple allegations regarding conversations and facts outside of the record, claiming that his counsel possessed knowledge of additional evidence that could bolster his defense, but failed to use it at trial. For example, he claims that Mr. Valentine failed to address the fact that there was another entrance to the office area, which could be accessed by the general public. This claim is contradicted by the record. Specifically, multiple witnesses testified that the office area was only accessible through secure doors, which required an access code that was not available to the general public. (See, e.g., Tr. at 134-136 (Mr. Bradshaw), 178-179 (Ms. Renner), 250-251 (Mr. Laufersweiler).)
{¶105} Next, Sexton asserts that there was additional evidence available to show that there were prior incidents of missing money at MJR. We cannot consider any potential evidence that was not in the record at trial, but we note that Sexton fails to provide a link between prior incidents of possible thefts and his innocence. Therefore, we cannot infer that the result of the trial would have been different if Mr. Valentine provided evidence of prior incidents of missing money at MJR.
{¶106} Sexton also claims that there was evidence proving that he worked on Saturdays “more frequently that [sic] was testified to by the witnesses.” (App‘t Br. at 21.) Yet, it was established at trial that Sexton did not work on Saturday, March 17, 2012, when the alleged crimes occurred. Therefore, the fact that he had worked on Saturdays in the past had no relevance to his defense.
{¶107} Accordingly, we reject Sexton‘s claim that his trial counsel was ineffective for failure to use additional evidence and put on a meaningful defense.
d. Failure to Remove Certain Individuals from the Jury
{¶108} As his last contention in this assignment of error, Sexton challenges his counsel‘s decision to allow certain individuals to serve on the jury. In particular, Sexton complains that “Juror number 8 said she knew Miriam Renner“; “Juror number 10 is the mother of Juror number 6“; and “Juror number 10 is also a clerk for the Union County juvenile court.” (App‘t Br. at 21.) As his only support for a claim that those individuals should have been removed “for cause,” Sexton
{¶110} For all of the foregoing reasons, Sexton‘s claims of ineffective assistance of counsel are rejected and his third assignment of error is overruled.
C. Conclusion
{¶111} Having reviewed the arguments, the briefs, and the record in this case, we find no error prejudicial to Appellant in the particulars assigned and argued. The judgment of the Common Pleas Court of Union County, Ohio is therefore affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
Notes
(B) The following are good causes for challenge to any person called as a juror:
(1) That the person has been convicted of a crime that by law renders the person disqualified to serve on a jury;
(2) That the person has an interest in the cause;
(3) That the person has an action pending between the person and either party;
(4) That the person formerly was a juror in the same cause;
(5) That the person is the employer, the employee, or the spouse, parent, son, or daughter of the employer or employee, counselor, agent, steward, or attorney of either party;
(6) That the person is subpoenaed in good faith as a witness in the cause;
(7) That the person is akin by consanguinity or affinity within the fourth degree to either party or to the attorney of either party;
(8) That the person or the person‘s spouse, parent, son, or daughter is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against any such party to another such action;
(9) That the person discloses by the person‘s answers that the person cannot be a fair and impartial juror or will not follow the law as given to the person by the court.
(C) Each challenge listed in division (B) of this section shall be considered as a principal challenge, and its validity tried by the court.
(D) In addition to the causes listed in division (B) of this section, any petit juror may be challenged on suspicion of prejudice against or partiality for either party, or for want of a competent knowledge of the English language, or other cause that may render the juror at the time an unsuitable juror. The validity of the challenge shall be determined by the court and be sustained if the court has any doubt as to the juror‘s being entirely unbiased.
(1) That the juror has been convicted of a crime which by law renders the juror disqualified to serve on a jury.
(2) That the juror is a chronic alcoholic, or drug dependent person.
(3) That the juror was a member of the grand jury that found the indictment in the case.
(4) That the juror served on a petit jury drawn in the same cause against the same defendant, and the petit jury was discharged after hearing the evidence or rendering a verdict on the evidence that was set aside.
(5) That the juror served as a juror in a civil case brought against the defendant for the same act.
(6) That the juror has an action pending between him or her and the State of Ohio or the defendant.
(7) That the juror or the juror‘s spouse is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against the juror.
(8) That the juror has been subpoenaed in good faith as a witness in the case.
(9) That the juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.
(10) That the juror is related by consanguinity or affinity within the fifth degree to the person alleged to be injured or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted; or to the defendant.
(11) That the juror is the person alleged to be injured or attempted to be injured by the offense charged, or the person on whose complaint the prosecution was instituted, or the defendant.
(12) That the juror is the employer or employee, or the spouse, parent, son, or daughter of the employer or employee, or the counselor, agent, or attorney, of any person included in division (C)(11) of this rule.
(13) That English is not the juror‘s native language, and the juror‘s knowledge of English is insufficient to permit the juror to understand the facts and the law in the case.
(14) That the juror is otherwise unsuitable for any other cause to serve as a juror.