[Cite as State v. Merritt,

.] STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 09 JE 26 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) GARY MERRITT ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 08 CR 60

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Thomas R. Straus Prosecuting Attorney Atty. George M. Sarap Assistant Prosecuting Attorney Jefferson County Justice Center 16001 State Route 7 Steubenville, Ohio 43952

For Defendant-Appellant: Atty. Eric M. Reszke Suite 810, Sinclair Building Steubenville, Ohio 43952

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 24, 2011 WAITE, P.J. -2-

{1} Appellant Gary Merritt was convicted of theft of four automatic catalytic

converters, in violation of R.C. 2913.02(A)(1), and vandalism resulting from that theft,

in violation of R.C. 2909.05(B)(1)(a). He was sentenced to concurrent nine-month

prison sentences on his convictions. Appellant appeals both his conviction and the

length of his sentence. Appellant raises two assignments of error relating to the trial

proceedings and one assignment of error regarding his sentence.

{2} Appellant argues that the trial court abused its discretion by allowing the

testimony of Kelly Bernardi, his ex-girlfriend. At trial, Bernardi testified that Appellant

confessed to several previous catalytic converter thefts. Appellant contends that this

was inadmissible as “other bad acts” evidence under Evid.R. 404(B). Although

inadmissible to prove character, evidence of prior crimes can be admitted if the other

acts evidence will be used to prove identity and to show a common plan or scheme,

and it was for these purposes that Bernardi testified.

{3} Appellant also argues that the jury verdict was against both the

sufficiency of the evidence and the manifest weight of the evidence. The state

offered two eyewitnesses to the crime that established Appellant as the perpetrator.

While Appellant called witnesses to refute the state’s arguments, their credibility was

undermined by their close relationship to Appellant and their own uncertainty in their

testimony. Similarly, Appellant’s own testimony was severely undermined by

subsequent rebuttal witnesses called by the state. A reasonable trier of fact could

find that the greater amount of credible evidence supports the jury’s guilty verdict. -3-

{4} Lastly, Appellant contests the length of the sentences given for his

convictions and claims that the trial court’s actions in exceeding the minimum

sentence constitute an abuse of discretion. This issue is now moot because

Appellant has served his sentence and has been released from confinement.

{5} For the foregoing reasons, the judgment of the lower court is affirmed.

Case History

{6} On February 2, 2008, four catalytic converters were cut off and taken

from automobiles for sale at Joe Leonard Auto Broker, a used automobile lot located

in Steubenville, Ohio. As a result of the theft, the vehicles also sustained damage to

their manifolds and tailpipes.

{7} A Jefferson County Grand Jury indicted Appellant for the crimes on May

7, 2008. Appellant was charged with theft in violation of R.C. 2913.02(A)(1) and

vandalism in violation of R.C. 2909.05(B)(1)(a), both fifth degree felonies. Appellant

rejected the state’s plea offer, and, on June 9, 2008, a jury trial in the matter was held

in the Jefferson County Court of Common Pleas.

{8} The state presented two eyewitnesses to the theft. Joseph Seng stated

that he had known Appellant for eight years. He testified that on the night of the

theft, Appellant asked him if would like to make some money. Seng explained that

he acted as a lookout while Appellant removed the catalytic converters. Citing poor

eyesight, Seng was initially unable to identify Appellant from the witness stand. He

explained that he wore eyeglasses but that they had recently broken. After the court

allowed Seng to walk around the courtroom, he correctly identified Appellant. -4-

{9} Eugene Walker, a mechanic who lives behind Joe Leonard Auto

Broker, testified that he watched the automobile lot at night for the past eight years.

On the night of the theft, Walker stated that he heard a “big banging” coming from the

lot. Surveying the lot, he noticed a car with fogged windows. After walking over to

investigate, Walker stated that he saw Appellant come out from underneath a nearby

car and run up the street, away from the auto lot. Walker stated that there was

sufficient light for him to see Appellant’s face.

{10} The state called three additional witnesses in its case in chief. Joe

Leonard, owner of the automobile lot, confirmed which vehicles had been vandalized

and testified to the total amount of damages. Kelly Bernardi, Appellant’s ex-girlfriend,

testified that Appellant had confessed to her regarding three previous catalytic

converter thefts and identified the locations of these thefts. Detective Stasiulewicz, a

Steubenville detective, described his investigation and testified regarding the lack of

physical evidence such as fingerprints or DNA.

{11} Appellant called three witnesses. Lovie Merritt, Appellant’s mother, and

Shawn Bowers, a friend, provided alibis for Appellant. Merritt testified that on the

night of the theft, Appellant was recuperating at her house from a previously incurred

injury. Bowers testified that he was at Merritt’s house on the night of the crime and

that Appellant never left the house. Both claimed that Appellant’s arm was in a sling

at the time. Additionally, Bowers also claimed to know the true perpetrator of the

crimes: his uncle, John Clark. -5-

{12} Appellant testified on his own behalf. He stated that he was

recuperating at his mother’s house on the night of the theft. Appellant testified that

he had sustained an injury after falling off a forklift on either January 13 or 14 and at

the time of the theft, his arm was in a sling. He claimed that he never left the house

on February 2, 2008, nor did he know anything about the theft. On cross-

examination, the state questioned Appellant about the injury he allegedly sustained.

Appellant admitted that he sought treatment at a Pittsburgh hospital in an effort to

avoid service of a warrant for his arrest on domestic violence charges in Steubenville.

He also admitted that he used the name of his brother, Donald Merritt, in a further

effort to conceal his identity. The state introduced the medical report of Appellant’s

hospital visit. Appellant confirmed it was the report of his hospital visit. The patient’s

name was listed as Donald Merritt and the date of the stay was January 13, 2008.

{13} The state called additional witnesses on rebuttal in order to contradict

Appellant’s testimony about his injury. Steubenville police officer Joseph Buchmelter

testified that in the early morning hours of January 13, 2008, he attempted to stop a

pickup truck for a traffic violation, but the truck failed to yield. During the subsequent

pursuit, the truck hit a utility pole and spun onto a nearby open field. Appellant and

an unidentified female, both passengers in the truck, exited the vehicle and ran from

the scene. Buchmelter pursued Appellant on foot, and Appellant ran into Beatty

Park, a nearby city park. Buchmelter continued to pursue him, but Appellant jumped

over a fence down into an adjoining culvert. Buchmelter stated that Appellant

appeared to have injured himself in the fall and lay still for about a minute where he -6-

landed. Appellant then got up and continued to run through the culvert area.

Buchmelter lost sight of Appellant when he entered a tunnel located at the end of the

culvert area. The height of the jump, estimated by Buchmelter to be over ten feet,

prevented Buchmelter from pursuing Appellant further. Pursuant to Steubenville

Police Department policy, Buchmelter notified local hospitals to contact the

department in case Appellant sought medical treatment.

{14} Steubenville police officer Mark Ensell also testified about the incident.

Ensell assisted Buchmelter in the pursuit of Appellant. He stated he cut off Appellant

in Beatty Park with his cruiser. Appellant, however, evaded arrest by jumping a fence

into the adjoining culvert area. The depth of the culvert also prevented Ensell from

pursuing Appellant further.

{15} The jury returned a guilty verdict on both counts. A sentencing hearing

was held on June 18, 2008. Citing Appellant’s dishonesty regarding his shoulder

injury and his lack of remorse, the common pleas court sentenced him to serve

concurrent nine month sentences on each count, more than the six-month minimum

sentence for the fifth degree felonies.

{16} Analysis of Appellant’s assignments of error will be conducted in logical

rather than numerical order.

ASSIGNMENT OF ERROR NO. 3

{17} “THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING

THE TESTIMONY OF KELLY BERNARDI.” -7-

{18} As an initial matter, the state argues that Appellant is foreclosed from

raising this assignment of error because he failed to object to Bernardi’s testimony at

trial. Except for instances of plain error, an appellate court does not consider an error

which a party failed to raise at the trial court level. McKimm v. Ohio Elections Comm.

(2000),

,

. The record indicates, however, that

Appellant did object to Bernardi’s testimony and that his objection was noted by the

trial court. (Tr., pp. 113-116.) Because Appellant appears to have raised an

objection to Bernardi’s testimony at trial, he is permitted to raise the issue on appeal.

{19} Appellant argues that Bernardi’s testimony relaying Appellant’s

confessions to other catalytic converter thefts should not have been admitted.

Evid.R. 404(B) prohibits the introduction of evidence of other crimes or wrongful acts

to prove the bad character of a person, but does allow such evidence to be admitted

for other purposes. Appellant cites State v. Schaim (1992),

,

, to explain that the admission of such “other bad acts” evidence is

“carefully limited because of the substantial danger that the jury will convict the

defendant solely because it assumes that the defendant has a propensity to commit

criminal acts, or deserves punishment regardless of whether he or she committed the

crime charged in the indictment.” This general rule protects defendants from a

conviction based on bad character or a jury’s desire to punish a victim for past bad

acts. On the other hand, if the state demonstrates that “other bad acts” evidence will

be used for a purpose beyond mere introduction of the accused’s bad character, this

may permit the testimony’s inclusion. -8-

{20} Because of the magnitude of the potential harm, evidence of other bad

acts is admitted pursuant to a strict two-part test. See State v. Broom (1988),

,

; see also State v. Fellows, 7th Dist. No. 09 JE

36,

. First, there must be substantial proof that the other bad

acts occurred and were committed by the defendant.

citing State v. Lowe (1994),

,

. Second, as noted above, the evidence of

the other bad acts must be used for purposes of showing one of the general rule’s

recognized exceptions.

citing State v. Crotts,

, 2004-Ohio-

6550,

. In the explanation of his assignment of error,

Appellant appears to challenge the admission of Bernardi’s testimony on both parts

of the test.

{21} In reviewing a trial court's application of this two-part test, an appellate

court only reviews whether the trial court abused its discretion in making its decision.

State v. Bey (1999),

,

. An abuse of discretion

connotes more than an error of judgment; it implies that the court's attitude was

unreasonable, arbitrary, or unconscionable. State v. Adams (1980),

,

.

{22} In cases where witness testimony provides the evidence of previous

wrongful acts, “the substantial proof requirement is satisfied if at least one witness

who has direct knowledge of the other act can testify to the other act.” State v.

Wright (Dec. 6, 2001), 4th Dist. No. 00CA39, at *17. Typically, a witness’s direct

knowledge stems from actual observation of the other acts. See, e.g., State v. -9-

Charley, 7th Dist. No. 05 BE 34,

;

.

Direct knowledge, however, may also derive from an accused’s admissions to a

witness. See, e.g., State v. Bromagen, 12th Dist. No. CA2005-09-087, 2006-Ohio-

4429, at ¶14. Witness testimony regarding the previous wrongful acts does not

require corroboration. See Wright, 4th Dist. No. 00CA39, at *17; see also State v.

McNeal, 8th Dist. No. 91507,

, at ¶14; Charley, 7th Dist. No. 05 BE

34,

. The credibility of a witness’s testimony is an issue for the trier

of fact. See Wright, at 49, citing State v. DeHass (1967),

,

, paragraph one of the syllabus.

{23} In the instant case, Bernardi did not, herself, observe Appellant’s

alleged other acts. Bernardi testified that Appellant confessed his prior thefts to her.

While the failure of the state to offer any corroborating evidence is notable, this lack

of corroboration does not demonstrate a lack of substantial proof. Under the

standard set out above, Bernardi possessed direct knowledge of the alleged other

acts. She claimed that Appellant personally confessed his actions to her. She did

not claim she learned of the acts through a third party or an unrelated circumstance.

Given Bernardi’s direct knowledge of the other acts, the lower court did not abuse its

discretion in finding that there was substantial proof for those acts.

{24} The state must also show that the contested testimony falls under one

of the general rule’s recognized exceptions. At trial, the state argued Bernardi’s

testimony was admissible to show a common scheme and cited Evid.R. 404(B).

{25} Evid.R. 404(B) states: -10-

{26} “Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

{27} The first sentence of Evid.R. 404(B) is essentially a restatement of the

common law rule against the admissibility of other acts evidence. See

. The second sentence of Evid.R. 404(B) provides a non-exhaustive list of

recognized exceptions to the general rule. See Wright, 4th Dist. No. 00CA39, at *12;

See also R.C. 2945.59.

{28} At trial, the state asserted that the testimony of Bernardi would

demonstrate that Appellant employed a “common scheme” in the theft of the catalytic

converters. On appeal, the state reasserts this contention. Proof of a common

scheme is relevant in two limited situations. See State v. Curry (1975),

,

. Other acts evidence tending to show a defendant’s

common scheme may be admissible if the other acts “form part of the immediate

background of the alleged act which forms the foundation of the crime charged in the

indictment,” such that the other acts “concern events which are inextricably related to

the alleged criminal act.”

Other acts evidence may also be admissible if the

identity of the crime’s perpetrator is at issue. Id.; see also State v. Brooks, 10th Dist.

No. 07-MA-79,

. The state can attempt to prove that the

accused committed the offense by showing that he or she has committed similar -11-

crimes which “share common features with the crime in question.” Bey,

,

.

{29} Based on the facts of the instant case, the first scenario does not apply.

The alleged other acts, distinct in time and place, are not part of the immediate

background that form the foundation of Appellant’s instant acts. Identity, however, is

at issue in the case. There is little question that the theft and its accompanying

vandalism occurred at Joe Leonard Auto Body on February 2, 2008. Two

eyewitnesses, including one participant, testified that the crimes took place that night.

The owner of the automobile lot attested to the loss of the converters and the

damage done to the cars. Finally, a veteran detective confirmed the theft and

resulting vandalism. Understandably, Appellant does not contest that the theft

occurred, but he asserts that he did not commit it, and he provided alibi evidence at

trial. The state argues, however, that the overall evidence, including the evidence of

Appellant’s prior thefts, tends to show Appellant’s identity as the perpetrator.

{30} Bernardi testified that Appellant had confessed to at least three other

catalytic converter thefts in the Steubenville area. Here, the other acts testified to by

Bernardi’s testimony exhibit several common features with the instant crimes:

catalytic converters were stolen; the thefts occurred in the same geographic area;

and the thefts seemed to have taken place in the same general timeframe. Given the

very specific nature of the types of thefts Appellant confessed to, and the

circumstances surrounding the thefts, the evidence was admissible under Evid.R.

404(B). -12-

{31} Even if Bernardi’s testimony was admitted in error, this error would not

require reversal. If there is substantial other evidence to support the guilty verdict, a

trial court’s error in admitting or excluding evidence is harmless. Id. at ¶25, citing

State v. McKnight,

,

,

.

Harmless error does not require reversal. See Crim.R. 52(A). In the instant case,

the state proffered two eyewitnesses to the crime. Both eyewitnesses testified that

Appellant committed the crime. There is little evidence in the record to question

either witness’s credibility. Even without Bernardi’s testimony, these witnesses’

testimony provided substantial other evidence to support Appellant’s guilty verdict.

{32} Appellant’s third assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 1

{33} “THE JURY VERDICT FINDING THE APPELLANT GUILTY OF THEFT

AND VANDALISM WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{34} Appellant’s assignment of error claims that the jury verdict was against

the manifest weight of the evidence. In the explanation supporting this assignment of

error, however, Appellant also argues that there was insufficient evidence to support

the verdict. “An evaluation of the sufficiency of the evidence and an evaluation of the

weight of the evidence are two distinct processes.” State v. McGowan, 7th Dist. No.

09 JE 24,

, citing State v. Thompkins (1997),

,

. An inquiry into the sufficiency of the evidence centers on

the prosecution’s burden of production, while an inquiry into the manifest weight of

the evidence deals with the prosecution’s burden of persuasion.

(Cook, J., -13-

concurring). When both concepts are raised, we review sufficiency of the evidence

claims first. State v. James, 7th Dist. No.

,

, ¶26; see also

(“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.”)

Sufficiency of the Evidence

{35} When an appellant challenges a conviction based on the sufficiency of

evidence, an appellate court does not assess “whether the state's evidence is to be

believed, but whether, if believed, the evidence against a defendant would support a

conviction.”

.

{36} In the instant case, Appellant was charged with two crimes: theft in

violation of R.C. 2913.02(A)(1); and vandalism in violation of R.C. 2909.05(B)(1)(a).

{37} R.C. 2913.02(A)(1) reads:

{38} “(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:

{39} “(1) Without the consent of the owner or person authorized to give

consent;”

{40} Conviction for theft under R.C. 2913.02(A)(1) requires proof that

Appellant knowingly obtained or exerted control over property without its owner’s

consent and with the purpose of depriving the owner of the property. The state

produced sufficient evidence to support Appellant’s conviction for theft. An -14-

accomplice testified that Appellant intended to steal the catalytic converters and

accompanied him to the scene of the theft. A second eyewitness saw Appellant

stealing the converters. The owner of the cars testified that their catalytic converters

had been taken.

{41} R.C. 2909.05(B)(1)(a) reads:

{42} “(B)(1) No person shall knowingly cause physical harm to property that

is owned or possessed by another, when either of the following applies:

{43} “(a) The property is used by its owner or possessor in the owner’s or

possessor’s profession, business, trade, or occupation, and the value of the property

or the amount of physical harm involved is five hundred dollars or more;”

{44} Conviction for vandalism under R.C. 2909.05(B)(1)(a) requires proof

that Appellant knowingly caused physical harm to the property of another when that

property is used by the owner in his business and the value of the property or the

harm done to the property exceeds $500. Again, the state produced sufficient

evidence, if believed, to support Appellant’s conviction under this statute. The theft of

the converters resulted in damage being done to the cars. The cars were business

property of Joe Leonard Auto Broker at the time of the theft. Joe Leonard testified

that the damage exceeded $500. Appellant did not contest the damage calculation.

Manifest Weight of the Evidence

{45} The claim that a verdict is against the manifest weight of the evidence

concerns whether a jury verdict is supported by “the greater amount of credible

evidence.” (Emphasis in original.) Thompkins,

, 678 N.E.2d -15-

541. Although the appellate court acts as a proverbial “thirteenth” juror under this

standard, it rarely substitutes its own judgment for that of the jury’s. This is because

the trier of fact was in the best position to determine the credibility of the witnesses

and the weight due to the evidence. See State v. Higinbotham, 5th Dist. No.

2005CA00046,

, citing State v. DeHass (1967),

,

,

. Only when “it is patently apparent that the

factfinder lost its way," should an appellate court overturn the jury verdict. State v.

Woullard,

,

,

, ¶80.

{46} In its case in chief, the state produced two eyewitnesses to the crimes.

Both Joseph Seng and Eugene Walker testified that Appellant had committed the

theft. Both testified that Appellant was underneath a car at the auto lot on the night

of the theft. Seng, an accomplice in the theft, stated Appellant was in the process of

stealing catalytic converters. Walker saw Appellant get out from underneath a car

from which the converter was stolen. Appellant’s repudiation of this testimony relied

on alibi testimony given by his mother, a friend and his own testimony. Both his

mother and Shawn Bowers stated that Appellant was recuperating at his mother’s

house from an injury sustained while operating a forklift. Appellant echoed their

testimony. The state, however, offered additional testimony to show that Appellant

fabricated his story as to the alleged source of his injury. If this testimony was

believed, the state proved that Appellant and his witnesses had not been entirely

truthful on the witness stand. -16-

{47} Given this set of circumstances, it is not “patently apparent” that the jury

lost its way in rendering its verdict. A jury could certainly have found the state’s

evidence to be more credible than the evidence offered by Appellant. Because a

reasonable trier of fact could have concluded the greater amount of credible

evidence supported the prosecution’s case, the jury’s verdict was not against the

manifest weight of the evidence.

{48} Appellant’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

{49} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

THE APPELLANT TO A DEFINITE TERM OF NINE (9) MONTHS IN PRISON.”

{50} Appellant was sentenced to nine months in prison on each offense, to

be served concurrently. The minimum sentence for each of Appellant’s convicted

offenses is six months. Appellant argues that there was no basis for the trial court’s

decision to impose more than a minimum sentence and labels the trial court’s

sentencing decision an abuse of discretion. Appellant’s counsel, at oral argument,

confirmed that Appellant has already served his term of incarceration and has been

released. Because this assignment of error deals only with the length of his

sentence, and he has served his prison term in full, the issue is moot and the

assignment of error overruled. State v. Verdream, 7th Dist. No. 02 CA 222, 2003-

Ohio-7284, ¶14.

{51} In conclusion, we find no error in the court’s admission of the testimony

of Appellant’s ex-girlfriend relating to his confession to other catalytic converter thefts. -17-

The testimony established a common scheme and does not merely constitute

prohibited evidence of prior bad acts. The record also establishes the sufficiency and

manifest weight of the evidence in favor of the conviction. Appellant’s assignment of

error regarding the length of his sentence is moot because he has already served his

sentence in full. We overrule Appellant’s three assignments of error and affirm the

judgment of the trial court in full.

Donofrio, J., concurs.

DeGenaro, J., concurs.