State v. StevensState v. Stevens
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Harlan L. Stevens, appeals his conviction in the Fayette County Court of Common Pleas. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 2} On January 9, 2015, the Fayette County Grand Jury returned a three-count indictment charging Stevens with the following felonies: breaking and entering, theft, and
{¶ 3} Stevens timely filed a notice of appeal on September 14, 2015. However, after several extensions, Stevens failed to timely file a brief pursuant to the scheduling order. As a result, we dismissed his appeal. Stevens subsequently filed an application to reopen his case pursuant to
{¶ 4} The relevant evidence at trial established that a Wendy‘s restaurant located in Jeffersonville at the intersection of State Route 41 and Interstate 71 was broken into between 10:00 P.M. on Sunday, September 21, 2014 and 5:00 A.M. on Monday, September 22, 2014. Stevens gained entry by breaking the drive-thru window with a large landscaping rock. Once inside the restaurant, he cut a hole on the side of the office safe with a grinder and removed approximately $1,900. The general manager of the restaurant, Misty Wine, discovered the
{¶ 5} During the investigation, the sheriff‘s office found a bloody bandage atop debris surrounding the safe and two flashlights on the office floor. The sheriff‘s office then submitted the bandage to the Ohio Bureau of Criminal Identification and Investigation (“BCI&I“) for DNA testing. The DNA testing revealed that the blood on the bandage contained Stevens’ DNA. Subsequently, the sheriff‘s office discovered Stevens had been questioned by Detective Michael Aiken of the Miamisburg Police Department in relation to a breaking and entering that occurred at a Miamisburg Arby‘s restaurant. The Arby‘s case similarly involved a breaking and entering through the drive-thru window. In the course of the investigation of the Miamisburg case, Detective Aiken obtained a buccal swab from Stevens. Stevens admitted to breaking into the Arby‘s restaurant with an accomplice and Miamisburg P.D. recovered a bag of tools from Stevens’ car parked near the Arby‘s restaurant that included a grinder he intended to use to gain access to the contents of the store safe.
{¶ 6} The Fayette County Sheriff‘s Office requested Detective Aiken submit Stevens’ buccal swab to BCI&I for testing and comparison to the DNA obtained from the bandage found at the Wendy‘s restaurant in Jeffersonville. The testing concluded that the DNA from the buccal swab matched the DNA from the bandage. At trial, the state presented evidence of Stevens’ involvement in the Miamisburg Arby‘s breaking and entering pursuant to
{¶ 7} Assignment of Error No. 1:
{¶ 9} Stevens first argues that the trial court erred by not merging his breaking and entering and safecracking convictions because they are allied offenses of similar import. Whether offenses constitute allied offenses of similar import subject to merger under
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
“In determining whether offenses are allied offenses of similar import within the meaning of
{¶ 10} “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{¶ 11} Stevens argues the trial court should have merged his convictions for breaking and entering and safecracking because they are the result of the same conduct, arise from the same animus, and caused the same harm. In support of his claim, Stevens asserts this court has previously held that breaking and entering could merge with safecracking when the animus of both crimes was the same. However, the authority cited does not directly support this proposition and predates the proper inquiry, as discussed above, under Ruff. See State v. Richardson, 12th Dist. Clermont No. CA2012-06-043, 2013-Ohio-1953, ¶ 26 (finding under Johnson analysis that grand theft and safecracking should have been merged where the defendant committed the offenses with the same conduct and with the same animus); but see id. (illustrating this court has found grand theft and safecracking do not merge where the defendant completed the offenses with separate conduct and a separate animus), citing State v. Crosby, 12th Dist. Nos. CA2010-10-081 and CA2011-02-013, 2011-Ohio-4907, ¶ 21. As demonstrated by Richardson and Crosby, the results of the allied offenses analysis will vary on a case-by-case basis dependent on the facts of a given case. Richardson at ¶ 26.
{¶ 12} Here, the trial court properly found that merger was not appropriate regarding Stevens’ convictions for breaking and entering and safecracking because they were of dissimilar import and were committed separately. Two or more offenses of dissimilar import exist “when the defendant‘s conduct constitutes offenses involving separate victims or if the
{¶ 13} In this case, the conduct and harm of damaging the drive-thru window was separate from the conduct and harm of cutting a hole in the side of the safe. The breaking and entering was complete after Stevens broke the drive-thru window and stepped inside the restaurant with the intent to commit a theft offense. Sometime later, Stevens cut a hole in the office safe and removed the cash. Thus, the initial offense of breaking and entering was complete before the separate conduct supporting the safecracking offense was undertaken. See, e.g., State v. Back, 12th Dist. Butler Nos. CA2015-03-037 and CA2015-03-038, 2015-Ohio-4447, ¶ 12 (holding offenses were not allied offenses of similar import where individual conduct supported the initial offense and separate conduct after completion of the initial offense supported the second offense); see also State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 16 (“Because one offense was completed before the other offense occurred, two offenses were committed separately for purposes of
{¶ 14} Assignment of Error No. 2:
{¶ 15} HARLAN STEVENS’ CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
{¶ 17} STEVENS’ CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
{¶ 18} “The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 102 (1997). Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Id., citing Black‘s Law Dictionary (6th Ed.1990) 1433. A conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211 (1982), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). The 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, 259-60 (1991), superseded by constitutional amendment on other grounds as stated by Smith at 102. In evaluating the sufficiency of the evidence, this court “defer[s] to the trier of fact on questions of credibility and the weight assigned to the evidence.” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 132. “Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the manifest weight of the evidence.” State v. Robinson, 162 Ohio St. 486, 487 (1955), superseded by constitutional amendment on other grounds as stated by Smith at 102.
{¶ 19} On the other hand, a manifest weight of the evidence challenge examines the “inclination of the greater amount of credible evidence, offered at a trial, to support one side
{¶ 20} “A reversal based on the weight of the evidence * * * can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict.” (Emphasis added.) Tibbs at 42-43; see also State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19 (stating that finding a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency). Therefore, “[b]ecause sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency.” State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
{¶ 21} Stevens argues the evidence supporting his convictions was insufficient to establish that he actually entered the Wendy‘s restaurant or committed any of the crimes therein, and that the amount of cash stolen was $1,000 or more. Further, Stevens argues that his convictions were against the manifest weight of the evidence for the same reasons. To support these arguments, Stevens claims the only evidence presented by the state that he entered the restaurant was a bandage containing Stevens’ DNA, which does not give rise to the inferences required by the jury to convict. Further, Wine‘s testimony that roughly
{¶ 22} After a thorough review of the record, we find the state presented sufficient evidence that would allow the jury to conclude beyond a reasonable doubt that Stevens committed the offenses of breaking and entering, theft, and safecracking. Here, it cannot be said that the jury clearly lost its way and created such a manifest miscarriage of justice requiring a reversal of Stevens’ convictions. The bloody bandage containing Stevens’ DNA found atop the safe debris in the office makes it highly probable that Stevens was inside the store. Further, the evidence of his prior breaking and entering of another fast food restaurant by breaking the drive-thru window to gain entry and having similar safe-cutting tools in his car provided enough circumstantial evidence for the jury to reasonably conclude that Stevens committed the offenses at the Wendy‘s restaurant. Finally, we find the state also presented sufficient evidence that the amount stolen from the Wendy‘s restaurant was $1,000 or more. Although Wine did not close the Wendy‘s restaurant the night before, she qualified her testimony regarding the amount stolen by stating that her calculation of approximately $1,900 was based upon a review of deposits and receipts from the night in question.
{¶ 23} Therefore, Stevens’ convictions for breaking and entering, theft, and safecracking were supported by sufficient evidence and not against the weight of the evidence. Accordingly, his second and third assignments of error are overruled.
{¶ 24} Assignment of Error No. 4:
{¶ 25} THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO USE 404(B) EVIDENCE AT TRIAL, AND THIS ERROR DEPRIVED STEVENS OF HIS RIGHT TO A FAIR TRIAL PURSUANT TO THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶ 26} “A trial court has broad discretion in the admission and the exclusion of
{¶ 27} “‘Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused‘s propensity or inclination to commit crime or that he acted in conformity with bad character.‘” State v. Ward, 12th Dist. Clermont No. CA2013-07-059, 2014-Ohio-990, ¶ 19, quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 15. However, the Ohio Supreme Court has promulgated certain exceptions to the common law regarding the admission of other acts evidence. Those exceptions are contained in
[e]vidence 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.
Furthermore, in order for evidence to be admissible pursuant to
[i]n any criminal case in which the defendant‘s motive or intent, the absence of mistake or accident on his part, or the defendant‘s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant‘s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
{¶ 28} The Ohio Supreme Court in Williams outlined a three-part test for courts to apply when considering the admissibility of other acts evidence. Williams at ¶ 19-20. First, the court should “consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Id. at ¶ 20, citing
{¶ 29} In this case, the other acts evidence involved the breaking and entering of an Arby‘s restaurant in Miamisburg through the drive-thru window. Detective Aiken of the Miamisburg Police Department testified that Stevens admitted to breaking into the Arby‘s restaurant during questioning. Additionally, a bag of tools was recovered from Stevens’ vehicle at the scene which included a grinder. Further, there was testimony that a similar grinder was likely used to carry out the Wendy‘s safecracking. The trial court allowed the presentation of this evidence to the jury for the limited purposes of showing identity and modus operandi. The trial court provided the jury with a limiting instruction before the
{¶ 30} After a thorough review of the record, we find there is substantial proof that the alleged other acts were committed by Stevens based upon the testimony of Detective Aiken. For the reasons that follow, we further find the trial court properly permitted the presentation of the other acts evidence to show identity and modus operandi under the three-part test in Williams.
{¶ 31} First, the evidence of Stevens’ prior breaking and entering of the Arby‘s restaurant by breaking through the drive-thru window while in possession of similar safe-cutting tools in his car provided circumstantial evidence for the jury to reasonably conclude that Stevens committed the offenses by undertaking a specific and unique method of action. Next, contrary to Stevens’ claim otherwise, this evidence was not admitted to demonstrate Stevens’ character in order to show that he acted in conformity therewith. Rather, as the two limiting instructions clearly establish, the trial court admitted the evidence for the purposes of identity and modus operandi. Specifically, the trial court admonished the jury that such evidence can only be considered for such purposes, and “cannot be used by [the jury] and it‘s not being offered by the State to prove character. In other words[,] that someone is a bad person and because they are a bad person they must have done this crime. So you absolutely cannot consider it for that purpose.”
{¶ 32} Finally, the evidence is probative of the fact that Stevens employed the same technique and tools to break into another fast food restaurant, which substantially outweighs any danger of unfair prejudice. This is particularly true where the trial court provided two
{¶ 33} Therefore, the trial court did not err by admitting other acts evidence pursuant to
{¶ 34} Assignment of Error No. 5:
{¶ 35} THE TRIAL COURT ERRED BY AGREEING TO GIVE A COMPLICITY INSTRUCTION AFTER THE DEFENSE CLOSING ARGUMENT AND OVER THE OBJECTION OF THE DEFENSE AND THIS ERROR DEPRIVED STEVENS OF HIS RIGHT TO A FAIR TRIAL PURSUANT TO THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶ 36} Stevens argues that the trial court improperly gave the jury a complicity instruction because the state did not present any evidence that more than one person committed the crimes with which Stevens was charged.
{¶ 37} The complicity statute,
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of
section 2923.01 of the Revised Code ;* * *
(F) Whoever violates this section is guilty of complicity in the
commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense.
A jury instruction on complicity is proper if the evidence presented at trial could reasonably be found to support a defendant‘s guilt pursuant to
{¶ 38} In this case, there was sufficient evidence presented at trial to warrant a jury instruction on complicity. Lieutenant Ryan McFarland of the Fayette County Sheriff‘s Office testified that there might have been two suspects. Lieutenant McFarland stated two flashlights were found near the safe in the office. Further, that despite the recovery of only Stevens’ DNA from the scene, it does not preclude the possibility that other persons may have been involved. Furthermore, as discussed above, the other acts evidence regarding the earlier Arby‘s restaurant demonstrates that Stevens’ modus operandi for carrying out these offenses may include an accomplice. While this evidence supporting the jury instruction is not overwhelming, facts do exist to support a complicity instruction. Therefore, the trial court did not abuse its discretion in charging the jury with complicity.
{¶ 39} Accordingly, Stevens’ fifth assignment of error is overruled.
{¶ 40} Assignment of Error No. 6:
{¶ 42} Stevens contends that the DNA evidence in this case was not authenticated due to the state‘s failure to establish a proper chain of custody for the buccal swab; thereby, providing an insufficient foundation to admit the BCI&I comparison lab report (“BCI&I report“) into evidence. Specifically, Stevens argues that Detective Aiken‘s testimony is insufficient to establish the chain of custody because he stated, “I, I believe I did yes[,]” in response to a question if he personally took the buccal swab. Stevens further contends that Detective Aiken “did not explain how the sample was taken, what protocols the officers follow when taking such samples, and what measures ensured that the sample was not contaminated or even confused for a different sample.”
{¶ 43}
{¶ 44} In this case, Stevens did not object to any testimony regarding the DNA evidence at the time it was offered. Stevens’ failure to object to the testimony constitutes a waiver of any error in its admission and may only be reviewed for plain error. Generally, the
{¶ 45} With respect to the oral testimony during trial regarding the DNA evidence, a review of the record reveals such evidence was properly admitted by the trial court because the state sufficiently established to a reasonable certainty that no substitution, alteration, or tampering occurred. Detective Aiken testified he took Stevens’ buccal swab at the conclusion of Stevens’ questioning regarding the Arby‘s break-in. Detective Aiken further explained that a buccal swab is performed by taking a “Q-Tip” about four to six inches long and swabbing the inside of a person‘s cheek, which is then placed into a small cardboard box. At the request of the Fayette County Sheriff‘s Office, the buccal swab was then sent to BCI&I for a DNA comparison. Timothy Augsback, a forensic scientist for BCI&I, further testified to the extensive procedures regularly undertaken to conduct a DNA comparison. Augsback testified that he conducted these procedures with respect to the DNA obtained from Stevens’ buccal swab and the bandage recovered from the Wendy‘s restaurant, which resulted in a DNA match. Therefore, the trial court did not commit plain error by permitting the oral testimony regarding the DNA evidence.
{¶ 46} The results of the DNA comparison are contained in the BCI&I report, which
{¶ 47} Here, the trial court did not abuse its discretion by admitting the BCI&I report. Contrary to Stevens’ assertion otherwise, Detective Aiken testified that he took Stevens’ buccal swab, which was later sent to BCI&I for DNA testing. As noted above, Detective Aiken further testified regarding the proper procedures for taking a buccal swab. Additionally, Augsback testified as to the procedures he performs as a forensic scientist when performing DNA comparisons and that he has performed “hundreds or thousands” of them. Augsback testified that he undertook these procedures with respect to the bandage and the buccal swab comparison, which resulted in a DNA match. This result was reduced to writing in the BCI&I report. Thus, the BCI&I report is relevant because it makes it highly probable that it is Stevens’ DNA on the bandage, which was located inside the Wendy‘s restaurant. Moreover, as analyzed above, the state sufficiently established to a reasonable certainty that the DNA evidence was free of substitution, alteration, or tampering. This established chain of custody for the DNA evidence described in the report coupled with Augsback‘s testimony authenticated the report provided a sufficient foundation for the report‘s admission. Accordingly, the trial court did not abuse its discretion.
{¶ 48} Nonetheless, even if we were to accept Stevens’ argument that the BCI&I report was improperly admitted into evidence, any alleged error would be harmless. An accused has “a constitutional guarantee to a trial free from prejudicial error, not necessarily one free of all error.” State v. Swartsell, 12th Dist. Butler No. CA2002-06-151, 2003-Ohio-4450, ¶ 31. Pursuant to
{¶ 49} In this case, any error in the BCI&I report‘s admission would have been harmless error because the information contained within the report was simply cumulative of the evidence presented through oral testimony. The BCI&I report detailed the procedures undertaken by Augsback to conduct the DNA comparison and the results therefrom. During the state‘s case-in-chief, Augsback provided direct testimony of this information in its entirety without objection. Therefore, due to the cumulative nature of the BCI&I report, we find Stevens cannot demonstrate any resulting prejudice from its admission
{¶ 50} Accordingly, Stevens’ sixth assignment of error is overruled.
{¶ 51} Finally, Stevens contends that his original appellate counsel was deficient by failing to timely file a brief, which resulted in prejudice because his appeal was dismissed. We previously found Stevens’ original appellate counsel‘s failure to file a brief raised a genuine issue of ineffective assistance of appellate counsel pursuant to
{¶ 52} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.