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State of Ohio v Spires

Case No. 10CA10 (OH Ct. App., Dist. 4, Jul. 14, 2011)

Appellant, Jack Spires, appeals from his conviction in the Gallia County Court of Common Pleas after a jury found him guilty of four counts of burglary in violation of R.C. 2911.12, felonies of the second degree, and one count of breaking and entering in violation of R.C. 2911.13, a fifth degree felony. On appeal, Appellant contends that 1) the trial court committed plain error in permitting hearsay testimony to be entered into the record; 2) the trial court committed plain error in permitting unauthenticated pictures and objects to be entered as evidence; 3) the trial court committed plain error in not issuing a jury instruction that no adverse inferences were to be drawn from defendant’s exercise of his right to not testify; 4) he received ineffective assistance of counsel; 5) his conviction was against the manifest weight of the evidence; 6) the State failed to produce sufficient evidence to sustain convictions of burglary and breaking and entering; and 7) the cumulative error in the trial deprived him of a fair trial.

We cannot conclude that the trial court erred or abused its discretion in admitting certain testimony, pictures and objects and, as such, Appellant’s first and second assignments of error are overruled. Additionally, as we find no error, plain or otherwise, related to the instructions provided to the jury, Appellant’s third assignment of error is overruled. Likewise, based upon our determination that Appellant did not receive ineffective assistance of counsel, Appellant’s fourth assignment of error is overruled.

Further, in light of our determination that Appellant’s convictions were supported by sufficient evidence and were not against the manifest weight of the evidence, Appellant’s fifth and sixth assignments of error are overruled. Finally, as Appellant has failed to demonstrate any error, let alone multiple errors, his seventh assignment is overruled. Having overruled all of Appellant’s assignments of error, we affirm the judgment of the trial court.

FACTS



A review of the record reveals that on or about October 15, 2009, Appellant was stopped in Gallia County, while driving a white vehicle owned by Jessica Duncan, who was a passenger in the vehicle. Appellant was stopped after a high speed chase spanning twelve to fourteen miles. Once stopped, Ms. Duncan, the owner of the vehicle, provided consent to search the vehicle. There in, law enforcement recovered various items, including computers, tools, a shotgun, a purse, and jewelry, later determined to be stolen property, which was linked to multiple reported burglaries that had occurred throughout the day.




 

 

Judge(s): Matthew W. McFarland
Jurisdiction: Ohio Court of Appeals, District 4
Court of Appeals Judge(s)
William Harsha, III
Roger Kline
Matthew McFarland

 
Appellant Lawyer(s) Appellant Law Firm(s)
Michael Barr Little & Sheets LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jeffrey Adkins Office of the Gallia County Prosecutor

 

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exceed sixty days upon the bail previously posted. the purpose of a counsel objected to the admission of exhibits 13 and 14, and that the trial gallia app. no. 10ca10 10 to the extent that this the provision of jury instructions. as such, appellant has not demonstrated deficient, and (2) the deficient performance prejudiced his defense so as to into an outbuilding. she attributed the pair's activities to their drug objects to be entered as evidence. the record reflects that appellant's acquittal under crim.r. 29 did not constitute ineffective assistance of request, to minimize the danger that the jury will give evidentiary weight to gallia app. no. 10ca10 24 {7} the jury found appellant guilty of all four counts of burglary overruled. likewise, based upon our determination that appellant did not the trial court. accordingly, appellant's third assignment of error is structure any criminal offense; {6} a criminal complaint was filed against appellant on october 19, appellant at trial. ms. duncan testified that she was in the car with plate number to a white vehicle, the owner of which was jessica duncan, more than one occasion.1 deprive him of a fair trial. state v. drummond, 111 ohio st.3d 14, 2006- witnesses are for the trier of fact. state v. thomas (1982), 70 ohio st.2d 79, to draw reasonable inferences from basic facts to ultimate facts." jackson at state v. dehass (1967), 10 ohio st.2d 230, 227 n.e.2d 212 at paragraph one the statement was not offered for the truth of the matter asserted, but rather defendant's guilt beyond a reasonable doubt. state v. jenks (1991), 61 ohio it connotes an attitude on the part of the court that is unreasonable, defense. he has a constitutional right not to testify. the fact that the admitted or not. as such, the inclusion of this evidence did not affect the ohio-5458 at 72; see, also, state v. murphy, washington app. no. computers and a pocketwatch were missing. phyllis hash, bence's appellant argues that absent ms. duncan's testimony, the state could not "substantial rights," i.e., it must have affected the outcome of the well-settled that statements offered by police officers to explain their the state's primary witness was jessica duncan. the record reveals that ms. strategy and is not considered deficient performance absent a showing of error is overruled. also state v. mullins, montgomery app no. 21277, 2007-ohio-1051 at 17; {40} oak hill patrolman chris gruber also testified at trial. he legal adequacy, not rational persuasiveness. the relevant question is, after a. his attorney refused to allow him to testify relations bd. (1992), 63 ohio st.3d 498, 506, 589 n.e.2d 24. when state failed to produce sufficient evidence to sustain convictions of burglary further, detective lisa harmon testified at trial. she testified that she was he objected to below. appellant objects to a statement provided by monica ohio st.3d 323, 339, 1995-ohio-235, 652 n.e.2d 1000, citing state v. however, the weight to be given evidence and the credibility to be afforded of evid.r. 901. further, her acknowledgment that these particular items eric werry, and detective lisa harmon. haskell saunders, the victim of error, let alone multiple errors, his seventh assignment is overruled. having appellant bears the burden to establish counsel's ineffectiveness.' " state v. search the vehicle. there in, law enforcement recovered various items, the trial transcript reveals that the state presented testimony from haskell to law enforcement. in her second statement, she essentially stated that she gallia app. no. 10ca10 13 {19} evid.r. 901 governs authentication and identification of eight year prison terms on each burglary count and a twelve month term on appellant's first and second assignments of error are overruled. {47} if "a reviewing court finds no prior instances of error, then the and entering. gestures, and voice inflections, and use these observations in weighing the find plain error: (1) there must be an error, i.e., "a deviation from a legal gallia app. no. 10ca10 20 {35} appellant was convicted of one count of burglary under r.c. addictions and stated that they needed money to buy drugs. same reasons that we rejected his argument that his conviction was against notice of appeal with the supreme court of ohio in the forty-five day appeal be drawn from defendant's exercise of his right to not testify; 4) he received violation of r.c. 2911.13(a), which provides that "[n]o person by force, to be entered as evidence. conviction was against the manifest weight of the evidence. "the legal assignment of error iii b. his attorney failed to move the court for an offered to prove the truth of the matter asserted in the statement, and only left her house briefly on the afternoon of october 15, 2009, and returned to to illustrate the steps taken during the course of her investigation. "[i]t is 2911.12(a)(1) and three counts of burglary under r.c. 2911.12(a)(2). r.c. clearly lost its way and created such a manifest miscarriage of justice that evid.r. 901(a), see, also, state v. wray, supra; citing state v. aliff (apr. 12, of the evidence. crime spree. she testified that the two of them had drug problems and they discretion in admitting certain testimony, pictures and objects and, as such, trial court." state v. hoke, lawrence app. no. 10ca32, 2011-ohio-1221 at {1} appellant, jack spires, appeals from his conviction in the gallia den. hamblin v. ohio (1988) 488 u.s. 975, 109 s.ct. 515. of the syllabus. gallia app. no. 10ca10 16 request a special instruction. as set forth above, for a reviewing court to assignment of error iv counsel, an appellant must show that (1) his counsel's performance was in the backseat. : testified regarding the door being unlocked. thus, this evidence would have receive ineffective assistance of counsel, appellant's fourth assignment of following: were trying to come up with money to buy drugs. she testified that she issuing a jury instruction that no adverse gallia app. no. 10ca10 4 reviewing court to find plain error: (1) there must be an error, i.e., "a aside from ms. duncan's testimony, which he deems unreliable, the state's proceedings"; and (3) the error must have affected "substantial rights," i.e., it that she received a call from her mother informing her that her house had weight of the evidence; 6) the state failed to produce sufficient evidence to quoting state v. wright, washington app. no. 00ca39, 2001-ohio-2473; utmost caution, under exceptional circumstances and only to prevent a examples of authentication or identification conforming with the acquital [sic] pursuant to ohio criminal rule the crimes. (1984), 466 u.s. 668, 687, 104 s.ct. 2052. to establish deficient it is ordered that the judgment be affirmed and that the 2006-ohio-6711, 860 n.e.2d 91, at 50, citing state v. robb, 88 ohio st.3d any rational trier of fact could have found the essential elements of the crime gallia app. no. 10ca10 7 a stay is continued by this entry, it will terminate at the earlier of the the stop, he obtained jessica duncan's permission to search the vehicle. [cumulative-error] doctrine has no application." state v. mcknight, vinton gallia app. no. 10ca10 3 the date of filing with the clerk. {8} in his first assignment of error, appellant contends that the trial record further reflects that the stolen items mentioned above, belonging to fourth assignment of error. state of ohio, : inferences were to be drawn from defendant's assembly not in conflict with a rule of the supreme court of ohio, by these that because the watch and ring were not engraved or personalized, and {13} not only were the details of harmon's testimony already in thus, appellant's second assignment of error is overruled. restitution in the amount of $1,078.50. it is from this conviction and testify. theory that appellant burglarized four houses. first and foremost, jessica determine whether, in resolving conflicts in the evidence, the trier of fact acquittal pursuant to crim.r. 29. the state disagrees, arguing that courts that notice of plain error under crim.r. 52(b) is to be taken "with the (1) trespass in an occupied structure or in a separately secured or separately assignment of error vi opinion that these particular items looked exactly like the ones she had seen was not credible and should have been "zero credibility" by the jury. upon bail has been previously granted by the trial affirm the judgment of the trial court. {22} given the evidence presented, the trial court did not abuse its and breaking and entering. when reviewing the sufficiency of the evidence, credibility of the proffered testimony." seasons coal co. v. cleveland testifying as to the statements made by another only when the statement is one of abuse of discretion, rather than plain error. at the close of the evidence or at such earlier time as the court reasonably smith at 41. we "must review the entire record, weigh the evidence and all objection concerning the proper foundation. in our view, ms. mulholand evidence and provides in (a) that "[t]he requirement of authentication or gallia app. no. 10ca10 21 weigh the evidence. state v. martin (1983), 20 ohio app.3d 172, 175, 485 michael l. barr, little & sheets, llp, pomeroy, ohio, for appellant. therefore was not inadmissible hearsay). st.3d 259, 574 n.e.2d 492, paragraph two of the syllabus. the test is one of it "looks just exactly like the ones he owned." appellant contended below supra; citing state v. clark (may 17, 1988), pike app. no. 408, 1988 wl applying the abuse of discretion standard, a reviewing court is not free to plaintiff-appellee, : case no. 10ca10 (1991), 57 ohio st.3d 135, 138, 566 n.e.2d 1181. {39} kendra bence, the victim of burglary count 3, testified that she support a finding that the matter in question is what its proponent claims. except as otherwise provided by the constitution of the united states, by the ohio st.3d 412, 2006-ohio-2815, 848 n.e.2d 810, at 95. to establish to sustain convictions of burglary and breaking {20} thus, the requirement of authentication or identification as a {2} we cannot conclude that the trial court erred or abused its gallia app. no. 10ca10 8 {12} appellant also objected at trial to testimony provided by lisa cumulative-error doctrine, "a conviction will be reversed where the the burglary investigations. we agree with the state. instructions provided to the jury, appellant's third assignment of error is the breaking and entering count, to be served consecutively for an aggregate amount of credible evidence, offered in a trial, to support one side of the refused to provide a statement, ms. duncan provided two taped statements {42} in light of this evidence, we cannot conclude that the jury lost by: _________________________ furthermore, as noted in wray, "no chain of evidence is required when discretion. an abuse of discretion involves more than an error of judgment; trial court committed plain error in permitting unauthenticated pictures and charges and the matter proceeded to a jury trial on may 18, 2010. at trial, condition precedent to admissibility is satisfied by evidence sufficient to court committed plain error in permitting hearsay testimony to be entered duncan testified on behalf of the state. ms. duncan was appellant's was missing, along with a harley davidson watch and ring. john manley, of the syllabus. in the resolution of appellant's fifth assignment of error, the state presented conviction is against the manifest weight of the evidence, we "will not could possibly also be purchased at a harley shop do not diminish her presented sufficient direct and circumstantial evidence that if believed, {25} as indicated above, carter requires such an instruction only error are overruled. finally, as appellant has failed to demonstrate any defect in the trial proceedings;" and (3) the error must have affected the manifest weight of the evidence. here, as detailed above, the state "i. the trial court committed plain error in {48} having overruled all of appellant's assignments of error, we that for sufficiency of the evidence." state v. smith, pickaway app. no. been broken into was not offered for the truth of the matter asserted and jury could have reasonably concluded that all the essential elements of the constitution of the state of ohio, by statute enacted by the general n.e.2d 1240. furthermore, the supreme court of ohio has admonished able to stop appellant, upon approaching the vehicle he observed a shotgun instruction under carter, concerning the jury's consideration of his failure to pursuant to local rule no. 14, this document constitutes a final trial court error does not individually constitute cause for reversal." state v. ohio-5084, 854 n.e.2d 1038, at 205, citing strickland v. washington find her back door open. upon entering she discovered that two laptop were not offered for the truth of the matter asserted and instead were offered that "[a] photograph is authenticated or identified by evidence establishing passing the vehicle in oak hill that evening, he testified that he attempted to afternoon in question. she testified that when she left for work that morning admit photographic evidence unless we find that decision to be an abuse of below an objective level of reasonable representation. state v. conway, 109 following errors for our review. 3 place him inside any of the occupied structures. to the contrary, a review of county court of common pleas after a jury found him guilty of four counts investigation. the state contends that this testimony simply duplicated the and one count of breaking and entering. appellant pled not guilty to the the various victims, were located in duncan's vehicle, which appellant was ii, iii, iv, v, vi, & vii and concurs in judgment only as to assignment of specific instances of testimony, which he contends constituted hearsay. two entering count. as such, the trier of fact could have found the essential overruled all of appellant's assignments of error, we affirm the judgment of evidence was "indirect, circumstantial, and of little probative value." cumulative effect of errors in a trial deprives a defendant of the expiration of the sixty day period, or the failure of the appellant to file a by way of illustration only, and not by way of limitation, the following are in the court of appeals of ohio testify. the state responds by pointing out that the trial court gave a special the gallia county common pleas court to carry this judgment into {3} further, in light of our determination that appellant's miscarriage of justice." id., quoting state v. long, supra, at paragraph three depict. citing, state v. hill (1967), 12 ohio st.2d 88, 90, 232 n.e.2d 394. occupied portion of an occupied structure that is a permanent or temporary grant, 67 ohio st.3d 465, 477, 1993-ohio-171, 620 n.e.2d 50. the fact constitutional right to a fair trial even though each of numerous instances of matters outside the record by filing a postconviction relief petition in the jack r. spires, : decision and judgment ohio st.3d 56, 526 n.e.2d 304, paragraph two of the syllabus. see, also, failing to move for an acquittal pursuant to crim.r. 29. as we discuss later prejudice, an appellant must show a reasonable probability exists that, but she saw appellant go around back of bence's house. vicki mulholand, the gallia app. no. 10ca10 17 : discovered items had been stolen, and is therefore not considered to be deficient or prejudiced him. {34} "even when sufficient evidence supports a verdict, we may concepts of sufficiency of the evidence and weight of the evidence are both pictures and objects to be entered as evidence; 3) the trial court committed appellant was stopped in gallia county, while driving a white vehicle when she heard the alarm she looked out her window and observed a man assignment of error vii duncan further testified that after being stopped, she provided law gallia app. no. 10ca10 29 receiving a phone call from her mother telling her that her house alarm was {17} in his second assignment of error, appellant contends that the missing. monica helms, the victim of burglary count 2, testified that after rule"; (2) the error must be plain, i.e., "an `obvious' defect in the trial (1984), 10 ohio st.3d 77, 80, 461 n.e.2d 1273. thus, we will only interfere to alibi of on his own behalf, thereby instruction regarding appellant's failure to testify and, as such, did not err. arbitrary, unreasonable, or unconscionable. blakemore v. blakemore (1983), 814; state v. martin (1983), 20 ohio app.3d 172, 175, 485 n.e.2d 717. depicted the harley davidson watch and ring she had seen her son wear on an appellate court examines the evidence admitted at trial to determine appellant was driving when he was arrested. exhibit 14 consisted of the [cite as state v. spires , 2011-ohio-3661.] the following, we agree with the state. assignments of error (2) trespass in an occupied structure or in a separately secured or separately convictions were supported by sufficient evidence and were not against the indicate that appellant had an alibi. appellant at trial. the state also introduced multiple other witnesses, gallia app. no. 10ca10 2 vehicle were linked with ms. duncan. he testified that deputy bartles with 333, 1996-ohio-395, 667 n.e.2d 960; see, also, state v. wray, gallia app. conclude that the verdict is against the manifest weight of the evidence, {24} "a trial judge has the constitutional obligation, upon proper question were what they claimed to be, in accordance with the requirements sufficient evidence to sustain appellant's convictions for burglary and merely substitute its judgment for that of the trial court. in re jane doe 1 mcfarland, j.: and the breaking and entering count. the trial court sentenced appellant to helms in which ms. helms stated that she received a call at work from her an explanation of the process of investigation." state v. warren, supra, at vii. the cumulative error in the trial deprived the testimony are issues to be determined by the trier of fact. state v. frazier, 73 {44} this test raises a question of law and does not allow us to occurred, it must have occurred off the record. "we may not consider iii. the trial court committed plain error in not issue rather than the other[.]" state v. sudderth, lawrence app. no 07ca38, it is ordered that a special mandate issue out of this court directing that it is a fair and accurate representation of that which it is purported to assignment of error is plain error, we note that mr. saunders himself also exercise of his right to not testify. discretion by admitting the photographs, or the actual items, over appellant's hearsay under evid.r. 801(c). we agree. see, state v. wente (cuyahoga testified that he was contacted by dispatch and was provided with a license trial court committed plain error in not issuing a jury instruction that no {28} in his fourth assignment of error, appellant contends that he {26} appellant contends that the trial court committed plain error in appellee. kline, j.: concurs in judgment and opinion. where the statement falls outside any exceptions to the rule against hearsay gallia county for the court, state counters by directing our attention to ms. mulholands actual testimony record; 2) the trial court committed plain error in permitting unauthenticated including the crime victims, neighbors who were witnesses to the events, as decisions to call witnesses is within the purview of defense counsel's trial actual watch and ring. as appellant's counsel objected to the admission of was damaged. upon entering the building he found that his air compressor 29. 79-80, 434 n.e.2d 1356; state v. dehass at paragraph one of the syllabus. app. no. 85501, 2005-ohio-4825 at 8-10 (statement by burglary victim 2911.12(a)(1) and (2) provide as follows: adverse inferences were to be drawn from his exercise of his right not to further, as noted by the state, appellant has offered no evidence to plead to a charge of complicity in exchange for her testimony against assignment of error is premised on an assertion that ms. duncan's testimony {11} we will first address the statements appellant challenges that enforcement consent to search her vehicle. she also gave a statement to law matthew w. mcfarland, judge not from your house? finder "is best able to view the witnesses and observe their demeanor, going off, she went home to find her playstation 2 was missing. teresa an accomplice of the offender is present, with purpose to commit in the testimony indicates that she provided a second statement because the first statement she provided was not something, the ring and the watch, those are things that you can buy at {10} evid.r. 801(c) defines "hearsay" as "a statement, other than sound discretion of the trial court. state v. awkal (1996), 76 ohio st.3d 324, record and had been heard by the jury. as such, the state contends that if countryman, washington app. no. 08ca12, 2008-ohio-6700, at 20, vi. the state failed to produce sufficient evidence testimony below, our review is limited to a plain error analysis. for a matters outside the record on a direct appeal. instead, an appellant may raise n.e.2d 717. rather, the test "gives full play to the responsibility of the trier c. jeffrey adkins, gallia county prosecuting attorney, gallipolis, ohio, for execution. under the privilege against compulsory self-incrimination guaranteed by the thus, we find no error related to the admission of these statements. saunders, monica helms, teresa reynolds, kendra bence, phyllis hash, app. no. 07ca665, 2008-ohio-2435, at 108; state v. hairston, scioto ii. the trial courrt [sic] committed plain error in "upon proper request." state v. hill; citing state v. fanning at 21. as in was the actual watch and ring recovered from the vehicle. ms. mulholand 2 {29} in order to prevail on a claim of ineffective assistance of gallia app. no. 10ca10 23 appellant when he drove her car around gallia county on the day of the direct testimony of ms. duncan, which had already been entered into the information he had received from a jackson county deputy during his gallia app. no. 10ca10 25 could have been bought by anyone at a harley shop that they were more than an error of judgment; it implies that the trial court's attitude was of the instances were objected to below and two were not. thus, our review an application for a stay during the pendency of proceedings in that court. if the trial court. have been fruitless in this case. as a result, trial counsel's failure to move for one made by the declarant while testifying at trial or hearing, offered in sound discretion of the trial court[.]" state v. haines, 112 ohio st.3d 393, evidence to prove the truth of the matter asserted." a witness is barred from thus, we find no error, plain or otherwise, in the instructions provided by manifest weight of the evidence, appellant's fifth and sixth assignments of defendant did not testify must not be considered for any purpose." period pursuant to rule ii, sec. 2 of the rules of practice of the supreme reasonable doubt as to all four burglary counts as well as the breaking and of investigation." state v. warren cuyahoga app. no. 83823, 2004-ohio- jackson county when he discovered that the tags to the suspect white investigation. specifically, sergeant werry testified that he contacted degree felony. on appeal, appellant contends that 1) the trial court the record. the court finds there were reasonable grounds for this appeal. court or this court, it is temporarily continued for a period not to vs. : released: july 14, 2011 the harley shop aren't they? error related to the sufficiency of the evidence, the weight of the evidence, assignment of error v the testimony of the state's other witnesses, which will be more fully 50506. her son wear on prior occasions and which were missing from her house. admitting photographs because they normally are not susceptible to duncan was offered a plea agreement in exchange for testifying against court admitted those exhibits over the objection. exhibit 13 was a crimes charged had been proven beyond a reasonable doubt. as such, we prison term of thirty three years. appellant was also ordered to pay and appellant had been riding around all afternoon and that while she 59, 68, 2000-ohio-275, 723 n.e.2d 1019. an abuse of discretion connotes {32} accordingly, appellant's fourth assignment of error is following carter v. kentucky (1981), 450 u.s. 288, 101 s.ct. 1112; see, vicki mulholand, john manley, oak hill patrolman chris gruber, sergeant {33} in his fifth assignment of error, appellant contends that his 2008-ohio-5115, at 27, quoting thompkins at 387. and two boxes of tools were missing. called in after the stop to help inventory the contents of the vehicle. the manifest miscarriage of justice." id., quoting state v. long (1978), 53 ohio "(a) no person, by force, stealth, or deception, shall do any of the defendant-appellant. : {43} in his sixth assignment of error, appellant contends that the defendant of a fair trial." is claimed to be." gallia app. no. 10ca10 28 permitting hearsay testimony to be entered onto {5} appellant and ms. duncan were arrested. although appellant outcome of the proceedings. accordingly, appellant's first assignment of occupied portion of an occupied structure, when another person other than _____________________________________________________________ {27} despite the fact that appellant was not entitled to a special court of ohio. additionally, if the supreme court of ohio dismisses the judgment entry gallia app. no. 10ca10 27 sentence that appellant now brings his timely appeal, assigning the proponent claims." the rule further provides as follows: counsel. state v. norman, ross app. nos. 08ca3059, 08ca3066, 2009- offered for their truth, but rather, are offered as an explanation of the process state v. hill (aug. 5, 1994), washington app. no. 93ca35, 1994 wl [trier of fact] could reasonably conclude that all the elements of an offense was offered for the effect on the listener, to show why she went home and the record indicates that ms. duncan provided two taped interviews on the day she was arrested. her {37} the vast majority of appellant's argument under this to commit therein any theft offense, as defined in section 2913.01 of the 375. accordingly, we reject the first argument advanced under appellant's admitted "exhibits 13 and 14, might not have come from her house." the {31} next, appellant asserts that his counsel was ineffective for gallia app. no. 10ca10 11 demarco (1987), 31 ohio st.3d 191, 509 n.e.2d 1256, at paragraph two of sustain convictions of burglary and breaking and entering; and 7) the looks like my son's watch and ring." notice to counsel conduct while investigating a crime are not hearsay because they are not committed plain error in permitting hearsay testimony to be entered into the discussed herein, and we will not substitute our judgment for that of the jury hearsay because they are not offered for their truth, but rather, are offered as app. no. 06ca3089, 2007-ohio-3707, at 41. we have already found no appellant's sixth assignment of error is overruled. {23} in his third assignment of error, appellant contends that the failure to testify cannot be considered for any purpose." state v. fanning citing state v. garrow (1995), 103 ohio app.3d 368, 370-371, 659 n.e.2d mother informing her that her house alarm was going off. appellant claims identification as a condition precedent to admissibility is satisfied by another statement of sergeant werry wherein the sergeant testified regarding no. 00ca08, 2001-ohio-2356. thus, we will not reverse a decision to remained in the car while appellant entered several residences and one neighbor, also testified. she testified that during the afternoon in question, requirements of this rule: of burglary in violation of r.c. 2911.12, felonies of the second degree, and harsha, p.j.: concurs in judgment and opinion as to assignments of error {30} appellant first asserts that his counsel was ineffective for the conviction must be reversed and a new trial granted." smith at 41, the effectiveness of appellant's trial counsel, the admission of evidence or ohio st.3d 380, 386, 1997-ohio-52, 678 n.e.2d 541. sufficiency tests the to establish the investigative steps taken by the sergeant in connection with werry wherein the sergeant testified that one of the victims, mr. saunders, of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and in addition, there was no notice of alibi filed in the record, in accordance with crim.r. 12.1, to even on his own behalf or with regard to an alibi.2 once stopped, ms. duncan, the owner of the vehicle, provided consent to fifth amendment, to have the judge instruct the jury that the defendant's truthful, explaining that she was scared that she was in trouble. both of these taped interviews were played if the fact finder clearly lost its way and created a manifest miscarriage of because the test under the manifest weight standard is much broader than appeal prior to expiration of sixty days, the stay will terminate as of the date the statements were admitted in error, such error was harmless. based upon performance, an appellant must show that trial counsel's performance fell appearances: proven beyond a reasonable doubt. id., citing jackson v. virginia (1979), evidence by virtue of ms. duncan's testimony, harmon's testimony served well as law enforcement involved in appellant's stop and investigation of tampering, alteration or substitution when properly authenticated." wray, prejudice." state v. jackson, lawrence app. no. 97ca2, 1997 wl 749480; appellant has failed to demonstrate how his counsel's performance was q. so what's here in the envelope could have come from a harley shop, elements of the crime proven beyond a reasonable doubt. accordingly, that his counsel was ineffective in refusing to allow him to testify to an alibi girlfriend and accomplice in the crimes. the state agreed to allow her to {41} sergeant eric werry also testified at trial. he testified that after additionally, as we find no error, plain or otherwise, related to the quantitatively and qualitatively different." state v. thompkins (1997), 78 however, "[o]n the trial of a case, * * * the weight to be given the evidence (1) testimony of witness with knowledge. testimony that a matter is what it photograph labeled as exhibit 13 offered into evidence fairly and accurately demonstrate that his trial counsel actually blocked him from testifying, either a. yes. gallia app. no. 10ca10 30 and woman and white car outside of helms' house. gallia app. no. 10ca10 5 gallia app. no. 10ca10 6 whether that evidence, if believed, would convince the average mind of the state v. hamblin (1988), 37 ohio st.3d 153, 155-56, 524 n.e.2d 476, cert. driving. 1 remained in the vehicle, appellant burglarized several residences and broke as set forth in evid.r. 803 and 804. see state v. davis (1991), 62 ohio st.3d assignment of error i the victim of the breaking and entering count, testified that when he arrived {46} in his seventh assignment of error, appellant contends that the on cross examination, which was as follows: again testified that it looked like her son justin's watch and ring, saying that {16} as set forth above, "it is well-settled that statements offered by outbuilding and took various different items throughout the day. ms. 06ca7, 2007-ohio-502 at 41. when determining whether a criminal : (1982), 1 ohio st.3d 19, 437 n.e.2d 583, paragraph one of the syllabus, of these statements will involve different standards of review. must have affected the outcome of the proceedings. state v. barnes, supra, to be stolen property, which was linked to multiple reported burglaries that 03ca12, 2003-ohio-4939, at 21 (citations omitted). to be specific, ms. mulholand testified, when asked what exhibit 13 appeared to be a picture of, that "it harmon in which harmon described the various items of property stolen had occurred throughout the day. cumulative error in the trial deprived him of a fair trial. under the under these circumstances. overruled. 46. further, considering that our standard of review under this portion of the gallia app. no. 10ca10 9 adequacy of the evidence, while weight tests "the inclination of the greater error i. for the jury. 419985. (emphasis added). failing to provide a special instruction to the jury despite his failure to rule 27 of the rules of appellate procedure. not object below. as appellant failed to object to the admission of the id. " `in ohio, a properly licensed attorney is presumed competent and the if a stay of execution of sentence and release would convince the average mind of the defendant's guilt beyond a revised code, or any felony." gallia app. no. 10ca10 12 to crim.r. 30, which requires that the request must be in writing and made guilty of four counts of burglary and one count of breaking and entering. that any errors occurred, let alone multiple errors. therefore, appellant's 5599 at 46; citing state v. price (1992), 80 ohio app.3d 108, 110, 608 written special jury instruction request at the close of the evidence pursuant proceedings. state v. barnes, 94 ohio st.3d 21, 27, 2002-ohio-68, 759 viewing the evidence in a light most favorable to the prosecution, whether garner, 74 ohio st.3d 49, 64, 656 n.e.2d 623, 1995-ohio-168; state v. owned by jessica duncan, who was a passenger in the vehicle. appellant reasonable inferences, consider the credibility of the witnesses, and for the alleged errors, the result of the proceeding would have been different. exceptions. deviation from a legal rule;" (2) the error must be plain, i.e., "an `obvious' n.e.2d 1088; state v. braxton (1995), 102 ohio app.3d 28, 49, 656 n.e.2d 319. the issues of the weight given to the evidence and the credibility of appellee recover of appellant costs herein taxed. initiate a traffic stop, which turned into a high speed chase spanning twelve to fourteen miles. patrolman gruber testified that when he was eventually photograph of a harley davidson watch and ring recovered from the vehicle v. the conviction was against the manifest weight have been proven beyond a reasonable doubt." state v. eskridge (1988), 38 {38} appellant further argues under this assignment of error that that this statement constituted inadmissible hearsay. the state contends that burglary count 1, testified that he returned to his home on october 15, 2009, judgment entry and the time period for further appeal commences from gallia app. no. 10ca10 18 the syllabus. home on the afternoon in question he noticed that the door to his outbuilding cumulative error in the trial deprived him of a fair trial. assistance of counsel for the following reasons: ineffective assistance of counsel; 5) his conviction was against the manifest from each house, as identified by ms. duncan during the course of the {4} a review of the record reveals that on or about october 15, 2009, plain error in not issuing a jury instruction that no adverse inferences were to stealth, or deception, shall trespass in an unoccupied structure, with purpose permitting unauthenticated pictures and objects against the admission of hearsay and provides: "hearsay is not admissible 10; see, e.g., state v. nichols (1984), 11 ohio st.3d 40, 42, 463 n.e.2d a certified copy of this entry shall constitute the mandate pursuant to the state then followed with exhibit 14, which {21} in the case sub judice, vicki mulholand testified that the police officers to explain their conduct while investigating a crime are not was stopped after a high speed chase spanning twelve to fourteen miles. breaking and entering. therefore, a crim.r. 29 motion for acquittal would st.2d 91, 372 n.e.2d 804, at paragraph three of the syllabus. gallia app. no. 10ca10 15 5 ohio st.3d 217, 219, 450 n.e.2d 1140. offender is present or likely to be present, with purpose to commit in the judgment affirmed. gallia app. no. 10ca10 14 that had been seen in the area of a burglary on october 15, 2009. after justice. here, the jury chose to believe ms. duncan's testimony, as well as 970; state v. blevins (1987), 36 ohio app.3d 147, 149, 521 n.e.2d 1105. overruled. including computers, tools, a shotgun, a purse, and jewelry, later determined citing, state v. hunt (1984), 20 ohio app.3d 310, 312, 486 n.e.2d 108. or testify on his own behalf, and was ineffective for failing to move for an refusing to allow him to testify to an alibi, or on his own behalf, thereby her computer was at the house and when her son's awoke that afternoon, it habitation of any person when any person other than an accomplice of the facts fourth appellate district "unauthenticateable." appellant further claims that ms. mulholland gallia app. no. 10ca10 26 of such dismissal. 2009, and appellant was subsequently indicted on four counts of burglary evidence sufficient to support a finding that the matter in question is what its appellant was also convicted of one count of breaking and entering, in 326, 344, 581 n.e.2d 1362. evid.r. 802 contains the general prohibition unconscionable, or arbitrary. franklin cty. sheriff's dept. v. state emp. these items of evidence below, we conclude that our standard of review is habitation any criminal offense[.]" (emphasis added). _____________________________________________________________ at 27. furthermore, the supreme court of ohio has admonished courts that a. i suppose." directs in order to be proper. as such, appellant was not entitled to a special vehicle and them two people." the state contends that these statements and the credibility of the witnesses are primarily for the trier of the facts." victim of burglary count 4, testified that her sons were home sleeping on the properly been before the jury whether sergeant werry's testimony had been into the record. under this assignment of error, appellant challenges four jackson county informed him "he was working similar cases with that same gallia app. no. 10ca10 22 gallia app. no. 10ca10 19 seventh assignment of error is without merit. "q. * * * uh, i apologize for picking on the ring and stuff, but that is {36} here, the state presented several witnesses in support of their to find lights on, doors unlocked, and a shotgun and his wife's purse were "now it is not necessary that the defendant take the witness stand in his own its way and created a manifest miscarriage of justice by finding appellant {15} appellant first objects to a statement provided by sergeant eric iv. defendant jack spires received ineffective {9} "the admission or exclusion of relevant evidence rests within the assignment of error ii fanning, here, a review of the record indicates that appellant did not file a one count of breaking and entering in violation of r.c. 2911.13, a fifth further, we conclude that there was substantial evidence upon which the : entry "(b) illustrations was a witness with knowledge who testified that the items of evidence in {18} the admission of photographic evidence is a matter within the reynolds, helms' aunt who lives near her also testified. she testified that {14} appellant challenges two additional statements to which he did a defendant's failure to testify. upon proper request, defendant has a right, rules, or by other rules prescribed by the supreme court of ohio." enforcement.3 reverse a conviction where there is substantial evidence upon which the continued stay is to allow appellant to file with the supreme court of ohio caution, under exceptional circumstances and only to prevent a manifest instruction, the trial court instructed the jury as follows: leaving the state's evidence uncontested. we first note that "[g]enerally, received ineffective assistance of counsel. specifically, appellant argues error is overruled. told him he accidentally left his back door unlocked. appellant objects to 443 u.s. 307, 99 s.ct. 2781. leaving the state's evidence uncontested; {45} we reject appellant's sufficiency argument for many of the overrule appellant's fifth assignment of error. notice of plain error under crim.r. 52(b) is to be taken "with the utmost 2000), lawrence app. no. 99ca8, 2000 wl 378370. in wray, we noted structure or in the separately secured or separately occupied portion of the


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