STATE OF OHIO v. BRANDON STODGEL
CASE NO. CA2012-04-010
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
3/25/2013
[Cite as State v. Stodgel, 2013-Ohio-1109.]
RINGLAND, P.J.
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. 12CRI0002
Jeffrey E. Buskirk & Associates, Susan R. Wollscheid, 121 West Market Street, Washington C.H., Ohio 43160, for defendant-appellant
RINGLAND, P.J.
{1} Defendant-appellant, Brandon Stodgel, appeals his convictions in the Fayette County Court of Common Pleas for having weapons while under disability, grand theft, safecracking, and possessing criminal tools. For the reasons stated below, we affirm.
{2} On January 13, 2012, appellant аnd Michael Newman were arrested by the Fayette County Sheriff‘s Department for their role in burglarizing two homes. Police arrested
{3} Ralph Templin testified that on January 13, 2012 he was at his Fayette County home having lunch in his basement. While Templin was eating lunch, he heard a loud noise and someone running across the first floor. Templin grabbed his cell phone, dialed 911, and went upstairs to investigate the noise. When he reached the first floor, he took a kitchen knife and walked to the back of the house. As Temрlin reached the back of his house, a man came out of one of the bedrooms carrying Templin‘s brand new coffee pot. Templin yelled at the man. Startled, the man dropped the coffee pot and dove out of a bedroom window. Templin then observed a second man outside, walking past a window. The two men got into a blue minivan and drove away.
{4} Upon investigation of the exterior of his home, Templin noticed the backdoor was kicked in and the lockset оn the door was broken. He also observed two sets of footprints in the snow around his house. Templin described the first man as wearing a sweatshirt and a toboggan. He stated that appellant was not the first man. Templin went on to describe the second man as wearing a “Carhart” jacket, with the hood up. He was unable to see the second man‘s face but testified that this man was around 5‘8” or 5‘9” in height. At trial, Templin identified the blue minivan that appellant and Newman were found to be driving as similar to thе minivan that was in his driveway.
{5} Next, Nicholas Gragg testified regarding the burglary of his home on January 13, 2012. Gragg explained that he was at work when he received a call from his security
{6} The responding police officer to the scene was Captain Tony Rose. Rose testified that upon approaching Gragg‘s home, he immediately noticed that the front doors of the home were open and appeared to be damaged. Inside the home, Rose detected that a television had been removed because the cords and wires attached to the television were still present. Rose also observed that a treadmill located in the master bedroom had been tipped to block entry into the master bathroom, indicating that someone had tampered with items in that room as well. Rose acknowledged that no fingerprints were taken at the home as he checked the surfaces in the home and was unable to find any good prints.
{7} Next, a few local residents testified that they found the fire safes and gun safe on the side of the road. Two women testified that they were driving down a road in Fayette County when they saw a blue minivan. The women thought the minivan was suspicious as it was traveling much slower than the speed limit. The women testified that the driver of the van was wearing a “Carhart” jacket and identified appellant as the driver of thе vehicle. After passing the van, the pair saw a black steel box lying in the ditch. A little while later, one of the women passed the box again, picked it up, and notified the Fayette County Sherriff. Additionally, a witness testified that she found two fire safes in a ditch along a Fayette County road and gave them to the Fayette County Sheriff‘s Department.
{9} The officers approached the vehicle and ordered thе men out of the van. Sheriff Stanforth observed that appellant was the driver of the vehicle and wearing a “Carhart” jacket. A large flat screen television, several guns, a hatchet, a screwdriver, and a hypodermic needle were found in the van. Later that night, police received the fire safes and gun safe. A Fayette County Sheriff Deputy testified that all the safes appeared to have been forced open and that the big safe had to be picked up by two officers.
{10} The last witness to testify was appellant‘s co-defendant, Matthew Newman. Newman explained that he is currently in prison for the burglaries of the homes of Templin and Gragg. Newman stated that a few days after he was arrested he spoke with Sergeant McFarland. During this conversation, Newman denied participation in the burglaries and told McFarland that appellant was the one who committed the offenses. Specifically, Newman explained that on January 13, 2012, he and аppellant were at appellant‘s father‘s house when appellant asked him if he wanted to “take a ride.” During the ride, the pair arrived at Templin‘s house and appellant knocked on the front door. When no one answered, appellant broke into the back door. Newman also stated that appellant was involved in the burglary at Gragg‘s home. He explained that appellant was the one who threw the cinder block into the front door of the home. During thе interview, Newman admitted that he was present during the burglaries and he went into both Templin‘s and Gragg‘s homes.
{12} Newman testified that after leaving the residence, he told appellant that he needed some dope, so he was going to “hit a lick” to obtain some money. After hearing this information, appellant became angry, left the vehicle, and started walking down the road. Newman then went to Gragg‘s home and burglarized the home on his own. After the burglary, Newman came upon appellant walking down the road and offered him a ride home. Appellant no longer trusted Newman and insisted on driving to ensure he would go straight home. During this time, Newman used a hatchet and screwdriver to pry open the safes and empty them. While aрpellant was driving, Newman threw the safes out of the van into the ditch. Subsequently, the van slid off the road and Newman and appellant were arrested.
{13} At the close of the state‘s case, the trial court sua sponte amended count six of the indictment. Count six was amended from
{15} Appellant now appeals, asserting two assignments of error. We will begin with appellant‘s second assignment of error.
{16} Assignment of Error No. 2:
{17} TRIAL COURT ERRED BY SUA SPONTE AMENDING COUNT SIX OF THE INDICTMENT, THEREBY CHANGING THE NATURE OF THE CRIME IN VIOLATION OF APPELLANT‘S RIGHTS.
{18} Appellant argues that the trial court erred when it amended count six of the indictment from
{19} We first note that apрellant failed to object to the trial court‘s amendment of the indictment. Accordingly, appellant has waived all but plain error on appeal. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 26. Plain error is present only if the error is obvious and, but for the error, the outcome of the trial clearly would have been different. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 108.
{20}
[t]he court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence provided no change is made in the name or identity of the crime charged.
{21} A trial court commits reversible error when it permits an amendment to the indictment that changes the “name” or “identity” of the crime charged. State v. Fairbanks, 172 Ohio App.3d 766, 2007-Ohio-4117, ¶ 21 (12th Dist.). This amendment is unlawful
{22} Determining whether the “name” of a crime is changed is a relatively simple proposition. Where the amendment does not change the “name” of the crime,
{23} The “identity” of a crime does not change when a court is simply correcting a clerical error even though the amendment changed an element in the offense. Stacey at ¶ 10. In Stacey, the court found plain error did not exist when the trial court amended the indictment to delete language stating the victim was the offender‘s spouse at the time of the rape bеcause it was factually and legally impossible for the defendant and the victim to be married. Id. See Columbus v. Cordova, 10th Dist. No. 11AP-602, 2012-Ohio-1812 (finding identity of traffic offense did not change when defendant had notice regarding the amended offense).
{24} On the other hand, the “identity” of a crime is changed when a court is not merely correcting a clerical mistake but instead modifying the elements of the crime. State v. Woody, 29 Ohio App.3d 364 (1st Dist.1986). In Woody, the court held that a trial court erred
{25} Shortly before the close of the state‘s case, the trial court sua sponte amended the indictment from
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent.
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent.
{26} On the cover page of appellant‘s indictment, he was charged with committing grand theft in violation of
Count Six
On or about January 13, 2012, and in Fayette County, Ohio, the [appellant] did, with purpose to deprive Nicholas Gragg, the owner of property or services, to wit * * * knowingly obtain or exert control over said property without the consent of Nicholas Gragg, the owner or person authorized to give consent, and the items being firearms or dangerous ordnance; in violation of Section 2913.02 of the Revised Code. (Emphasis added.)
{27} Additionally, count six of the bill of particulars specified that appellant violated
{28} We find that the trial court did not commit plain error in amending the indictment from
{29} We also find Woody distinguishable as there was no discrepancy in that case between the cover page of the indictment and the body of the indictment. Unlike Woody, appellant was notified that the state was procеeding under (A)(1). In this case, it was clear that the trial court was correcting a clerical error. Additionally, unlike Woody we review the trial court‘s decision under a plain error analysis.
{30} Therefore, the trial court‘s amendment of the indictment was not plain error. Appellant‘s second assignment of error is overruled.
{31} Assignment of Error No. 1:
{32} THE TRIAL COURT VIOLATED THE APPELLANT‘S RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES AND THE STATE OF OHIO BY SUSTAINING A CONVICTION THAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WITHOUT SUFFICIENT EVIDENCE.
{33} Appellant argues that his convictions for having weapons while under disability,
{34} As this court has previously stated, “a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency.” State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298, ¶ 35. In turn, while a review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct concepts, this court‘s determination that appellant‘s conviction was supported by the manifest weight of the evidence will be dispositive of the issue of sufficiency. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{35} A manifest weight challenge concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. State v. Clements, 12th Dist. No. CA2009-11-277, 2010-Ohio-4801, ¶ 19. A court considering whеther a conviction is against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of the witnesses. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 39. However, while appellate review includes the responsibility to consider the credibility of witnesses and weight given to the evidence, these issues are primarily matters for the trier of fact to decide since it is in the best position to judge the credibility of the witnesses and the weight to be given to the evidence. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Therefore, the question upon review is whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. State v. Good, 12th Dist. No. CA2007-03-082, 2008-Ohio-4502, ¶ 25.
{37} Safecracking is defined as, “[n]o person, with purpose to сommit an offense, shall knowingly enter, force an entrance into, or tamper with any vault, safe, or strongbox.”
{38} First, we address appellant‘s contention that his convictions were against the manifest weight of the evidence because there was no evidence to establish that he “possessed” the firearms, safes, or criminal tools. To begin with, appellant‘s co-defendant, Newman, implicated appellant in all the events that occurred on January 13, 2012 and established that appellant possessed the firearms, safes, and criminal tools. During Newman‘s police interview, he stated аppellant was involved in the burglaries of Templin‘s and Gragg‘s homes and the subsequent offenses that occurred. Newman denied being
involved in the burglaries and stated that the offenses were appellant‘s idea. On the stand,
{39} Other evidence also shоwed appellant “possessed” these items. The victim of the second home burglary explained that several items that were stolen from him were very heavy and would require two people to lift them. Also, a witness who saw a blue van driving very slowly identified appellant as the driver. The witness explained that shortly after the van passed, she found Gragg‘s empty gun safe which had been broken into on the side of the road. The two fire safes were also found in a ditch on a different road. Further, Sheriff Stanforth testified that he observed a van that matched a witness’ description of the van involved in the burglaries. After a marked police vehicle began following the van, the driver of the van sped up, lost control, and crashed in a field. Police discovered appellant driving the van. Inside the van, police saw the guns, which were once stored in Gragg‘s gun safe, and a television. Additionally, a screwdriver and a hatchet were located near the passenger‘s seat in the vаn. Thus, the manifest weight of the evidence shows that appellant possessed the firearms, safes, and criminal tools.
{40} Next, we address appellant‘s argument that his convictions for having weapons while under disability and grand theft were against the manifest weight of the evidence because the state failed to show that the firearms were operable. Both offenses of grand theft and having weapons while under disability require that the defendant have a “firearm or dangerous ordnance.”
{41} Proof of operability of a firearm “can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime.” State v. Murphy, 49 Ohio St.3d 206 (1990), syllabus. See
{42} We find that the manifest weight of the evidence showed that the fireаrms were operable at the time appellant possessed them. At trial, Gragg testified that several guns were stolen from his home. He explained that after he received these guns from police, he successfully fired every firearm. Additionally, Gragg stated that several of the firearms fired successfully a few months before the burglary. Accordingly, the manifest weight of the evidence established that the firearms were operable.
{43} Thus, the manifest weight of the evidence established that appellant “possessed” the firearms, safes, and criminal tools and that the firearms were operable. Additionally, the manifest weight of the evidence established all other elements of appellant‘s convictions. Appellant‘s first assignment of error is overruled.
S. POWELL and M. POWELL, JJ., concur.
RINGLAND, P.J.