[Cite as State v. Young,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 12CA14 : vs. : : DECISION AND JUDGMENT GLENN F. YOUNG, JR., : ENTRY : Defendant-Appellant. : Released: 07/26/13 _____________________________________________________________ APPEARANCES:

David A. Sams, West Jefferson, Ohio, for Appellant.

James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} Glenn F. Young, Jr., appeals his conviction in the Washington

County Court of Common Pleas after a jury found him guilty of one count of

theft of a dangerous drug, a violation of R.C. 2913.02(A)(1)(2)(3) and (B)

(1)(6). On appeal, Young contends (1) the trial court erred by admitting

hearsay; (2) the trial court erred in admitting Appellant’s statements in the

absence of a corpus delicti; (3) the judgment is based upon insufficient

evidence and is otherwise against the manifest weight of the evidence; and,

(4) Appellant was denied effective assistance of counsel. Washington App. No. 12CA14 2

Upon review, we find the trial court’s admission of Carrie Roush’s alleged

hearsay statement was not error. Here there was sufficient evidence to

establish the corpus delicti of the crime in this matter and, as such, the trial

court did not err in subsequently admitting Appellant’s tape-recorded

confession. We also find the jury’s verdict was based on sufficient evidence

and was also not against the manifest weight of the evidence. Finally, we

find Appellant was not denied effective assistance of counsel. Accordingly,

we overrule all assignments of error and affirm the judgment of the trial

court.

FACTS

{¶2} Glenn F. Young, Jr., was indicted for theft of a dangerous drug,

a violation of R.C. 2913.02(A)(1))(2)(3) and (B)(1)(6) by the Washington

County Grand Jury on April 29, 2011. The indictment specifically alleged

theft of 25 pills containing Hydrocodone and approximately 10

Cyclobenzaprine pills. Appellant’s mother, Clara M. Young, was the alleged

victim of this crime. Appellant proceeded to a jury trial on January 18, 2012.

{¶3} At trial, the State presented testimony from Carrie Roush,

Appellant’s sister. She testified her mother lived in an apartment in Beverly,

Ohio in early 2011. Ms. Roush testified her mother had just returned to her

apartment after being away for a month after knee replacement surgery in Washington App. No. 12CA14 3

late January 2011. Ms. Young had been in a nursing home three weeks. Ms.

Roush assisted her mother in obtaining her medication, a pain medication, a

muscle relaxant, and her regular medications, from the B&W Pharmacy on

or about February 18, 2011. Ms. Young then stayed with her daughter a

week after obtaining the prescriptions on the 18th. Ms. Roush testified

during that time, her mother resisted taking her Vicodin as much as possible.

At the time Ms. Young returned to her apartment in the latter part of

February 2011, she still had nearly the entire prescription of pain

medication, a 60- day supply. On the Sunday or Monday following Ms.

Young’s return to her apartment, Carrie Roush received a phone call from

her mother that “some of her pills were missing.” Ms. Roush testified she

then went to her mother’s apartment, counted her pills, and noticed

approximately half of the pills were missing. She advised contacting the

police. Carrie Roush further testified to her knowledge, the only people

present at her mother’s apartment during the relevant time period, (the

Friday her mother returned to her apartment until the Sunday or Monday Ms.

Roush assisted her mother in counting the pills), were her brother, Appellant

Glenn F. Young, Jr., and his ex-wife Aimee Young.

{¶4} On cross-examination, Carrie Roush testified she did not

actually see Appellant take the pills. Ms. Roush also testified her mother had Washington App. No. 12CA14 4

anxiety attacks when her children were in a fight or her grandchildren were

“back-talking.” Ms. Roush acknowledged her mother’s memory was

questionable, and there had been other instances of her making accusations

against Appellant. Ms. Roush testified her brother’s personality was to

“fight back” against an accusation. On redirect, Ms. Roush testified the

missing pills were never found. 1

{¶5} Clara M. Young did not testify at trial. The State played a brief

recorded telephone conversation between Appellant and his mother dated

March 3, 2011. Prior to introducing the recorded statement, defense counsel

objected on the basis that (1) there had not been enough evidence established

at trial to establish a corpus delicti, and, (2) Ms. Young’s statement was

testimonial hearsay which a limiting instruction would not cure. The trial

court ruled there was sufficient evidence to establish a corpus delicti. The

trial court also ruled the recording would be admissible with a limiting

instruction that Ms. Young’s statements were admissible only to give

context to the statements made by the defendant. The relevant portion of the

transcript of the recorded statement is as follows:

{¶6} Glenn Young, Jr.: I got your messages this morning.

1 Ms. Roush referenced “pain medication” and “pills” in her testimony. She never used the terms “Vicodin” or “Hydrocodone.” She responded to questions from the prosecuting attorney regarding “Vicodin.” Ms. Roush’s only testimony regarding cyclobenzaprine referenced in the indictment was that she “picked up her mother’s medications,” which included a “muscle relaxant.” Washington App. No. 12CA14 5

Clara Young: Yea, I was just kinda wondering why you had to 2 take those pain pills Bud.

Glenn Young, Jr.; Huh?

Clara Young: I’m wondering why you got in there and took my pain pills.

Glenn Young, Jr.: I only took 5 of them.

Clara Young: (Unintelligible) you took more than 5, because I only used 5 of them and there are 30 left and that means you took 25.

Glenn Young, Jr.: No I didn’t.

Clara Young: Glenn Young Jr., there’s nobody else in this world been in my house, since I brought them pills from Sis’s.

Glenn Young, Jr.: I’ll get them and bring them back to you.

Clara Young: Huh?

Glenn Young, Jr.: I’ll buy some and bring them back to ya.

Clara Young; I don’t want you to buy some. I want to know why you took them?

Glenn Young Jr.: Because I needed them. You never gave them to me when I asked.

Clara Young: Well maybe if you would have asked I would have gave you one, but you didn’t need to steal from me.

Glenn Young Jr.: Well what (unintelligible)

Clara Young: And the same thing with the Flexural (sic).

Glenn Young Jr.: Yea, Well (sic), I didn’t take the Flexural (sic).

2 Appellant’s nickname is “Bud” or “Buddy.” He testified Carrie Roush’s nickname is “Sissy.” Washington App. No. 12CA14 6

Clara Young: O.k. So, why did you take the pain medicine?

Glenn Young Jr.: Because I needed them.

Clara Young: Like I said nobody has been in this apartment but you, so I knew it had to be you.

Glenn Young Jr.: I know who it is, I will bring them back to you.

{¶7} The final State’s witness was Patrolman Larry Freed. Patrolman

Freed testified he made contact with Clara Young on March 3, 2011, as part

of his duties with the Beverly Police Department. He had been advised by

Chief Sams that pills had been stolen from her residence. He went to Clara

Young’s apartment to assist her in recording a phone conversation with her

son. He did not tell Ms. Young what to say during the conversation. He

testified he provided a complete copy of the conversation to the prosecuting

attorney’s office and to Chief Sams, who was investigating the complaint.

He testified nothing was edited or removed from the conversation. At this

point in the trial, the State offered the tape into evidence. Defense counsel

renewed his objection to the tape and requested a limiting instruction. The

limiting instruction was as follows:

Ladies and gentleman, you listened to a tape, or at least a recording of an alleged conversation between Clara Young and Glenn Young, Jr. Clara Young’s statements on the CD are not offered for the truth of those statements—that is, they’re not offered to prove the assertions made by Mrs. Young, in that tape. They are admissible only to provide context for Mr. Washington App. No. 12CA14 7

Young’s replies. So, the information that—that she provided, accusations that she made, statements that she made, are not evidence of those and you are to disregard them as such. The only reason you heard them, was so that you would have the context in which to understand the statements allegedly made by Mr. Young.

{¶8} On cross-examination, Patrolman Freed testified he never

looked at the pill bottle, checked for fingerprints on the bottle, or took

photos of the bottle. He testified it was Chief Sams’ suggestion to record a

phone conversation and try to get Appellant to admit guilt.

{¶9} At this point in trial, counsel for the parties stipulated that Clara

Young’s medication contained Hydrocodone, a dangerous drug as defined in

R.C. 4729.02. 3 The State offered the tape-recorded conversation as Exhibit

A, and the transcript of the recorded conversation as Exhibit B, into

evidence. The exhibits were admitted and the State rested. Defense counsel

made a Crim.Rule 29 motion for acquittal based on insufficient evidence.

The motion was denied.

{¶10} The defense first called Aimee Young (“Aimee”), Appellant’s

ex-wife, with whom he continued to have a close relationship. In early

2011, Appellant and Aimee were living in a camper in Meigs County, Ohio.

Aimee testified she worked at a gas station, Appellant was unemployed, and

3 We note R.C. 4729.02 is entitled “State Board of Pharmacy.” We presume the stipulation should have cited 4729.01 entitled “Pharmacists, dangerous drugs definitions.” Washington App. No. 12CA14 8

finances were “difficult.” Appellant’s mother invited them to stay so they

went to her apartment on or about February 26, 2011. Aimee was unaware

of Ms. Young’s recent surgery or that Ms. Young had medications. Aimee

also testified Appellant’s mother had made other accusations against him in

the past.

{¶11} On cross-examination, Aimee acknowledged Appellant and she

moved to Ravenswood, West Virginia after the allegations of theft surfaced

but returned to Ms. Young’s apartment 2-3 weeks prior to the trial. Aimee

testified Ms. Young was emotional, crying and upset at the thought of

having to testify against her son. Aimee also testified Appellant admitted to

taking 5 pills because did not want to argue with his mother and was simply

trying to appease her.

{¶12} The next defense witness was Chief of Police Mark Sams of

the Beverly Police Department. Chief Sams testified Patrolman Freed was

no longer with the department. Chief Sams testified he took the initial report

and spoke with the victim on a couple of occasions. He also talked to Carrie

Roush. Chief Sams testified he did not photograph or collect finger prints of

the pill bottle. He did not collect the bottle or count the pills. Chief Sams

verified it was his idea to have the victim contact Appellant and record the

conversation. On cross-examination, Chief Sams testified he never saw Washington App. No. 12CA14 9

evidence of Ms. Young’s alleged mental infirmities. He acknowledged she

was upset and angry when they spoke. He testified he saw the victim and

her daughter counting the pills and was satisfied that pills were missing.

{¶13} Appellant was the final witness. He testified his father passed

away in 2002. Appellant testified he knew his mother was in a nursing

home and at his sister’s house after the knee surgery. Appellant

corroborated the previous testimony about his mother’s tendency to make

accusations against him.4

{¶14} Appellant gave testimony explaining the tape-recorded

conversation with his mother. He testified he was lying when he told her he

took five pills to “smooth things over.” He testified that if he had denied the

accusation, it would have been an “all-out brawl,” and his mother may have

“gone to her grave mad” at him. Appellant testified he was tired of fighting

and arguing with his only surviving parent. He testified he was staying with

his mother at the time of trial in an effort to make amends.

{¶15} The jury subsequently found Appellant guilty. He was

sentenced on February 29, 2012. This timely appeal followed.

4 The substance of the accusations referenced by Carrie Roush , Aimee Young, and Appellant was that Appellant had been accused of hurting his mother’s bird and stealing gas cards. There was also testimony about a missing food stamp card, misplaced insurance card, and misplaced cell phone. Washington App. No. 12CA14 10

ASSIGNMENTS OF ERROR

I. THE DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF INADMISSIBLE HEARSAY CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

II. THE TRIAL COURT ERRED IN ADMITTING THE STATEMENTS OF THE DEFENDANT-APPELLANT IN THE ABSENCE OF A CORPUS DELICTI.

III. THE JUDGMENT IS BASED UPON INSUFFICIENT EVIDENCE AND IS OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

IV. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL CONSTITUTIONS.

ASSIGNMENT OF ERROR ONE

{¶16} Appellant contends he was denied a fair trial by the

admission of inadmissible hearsay contrary to Ohio law and the State and

Federal Constitutions. Specifically, Appellant argues Carrie Roush’s

statement “I got a phone call from my mom that some of her pills were

missing” should not have been admitted. At trial, Clara M. Young did not

testify. She was an unavailable declarant and defense counsel had no

opportunity to cross-examine her regarding her out-of-court statement to her

daughter. These facts suggest the statement is hearsay. Appellee argues the

statement falls into one of the recognized exceptions to the hearsay rules. Washington App. No. 12CA14 11

Appellee counters the statement was offered to explain the personal

knowledge and subsequent actions of Carrie Roush. Appellant failed to

object to introduction of the statement at trial. Therefore, we review the

alleged error under the standard set forth regarding plain errors.

A. STANDARD OF REVIEW

{¶17} Failure to object to an alleged error waives all but plain

error. State v. Keeley, 4th Dist. No. 11CA5,

,

, ¶ 28. Notice of CrimR. 52(B) plain error must be taken with the

utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice. State v. Rohrbaugh,

,

,

; State v. Long,

,

(1978), at paragraph three of the syllabus. To find plain

error, the outcome of trial clearly would have been otherwise. State v.

McCausland,

,

,

;

State v. Braden,

,

,

, at ¶

50.

{¶18} “The admission or exclusion of relevant evidence rests within

the sound discretion of the trial court[.]” State v. Haines,

,

,

, citing State v. Robb,

,

,

. An abuse of discretion Washington App. No. 12CA14 12

connotes more than an error of judgment; it implies that the trial court’s

attitude was arbitrary, unreasonable, or unconscionable. Blakemore v.

Blakmore,

,

(1983).

{¶19} Evid.R. 801(C) defines “hearsay” as “a statement, other than

one made by the declarant while testifying at trial or hearing, offered in

evidence to prove the truth of the matter asserted.” A witness is barred from

testifying as to the statements made by another only when the statement is

offered to prove the truth of the matter asserted in the statement, and only

where the statement falls outside of any exceptions to the rule against

hearsay as set forth in Evid.R. 803 and 804. See State v. Davis,

,

(1991). Evid.R. 802 contains the general

prohibition against the admission of hearsay and provides: “Hearsay is not

admissible except as otherwise provided by the Constitution of the United

States, by the Constitution of the State of Ohio, by statute enacted by the

General Assembly not in conflict with a rule of the Supreme Court of Ohio,

by these rules, or by other rules prescribed by the Supreme Court of Ohio.”

{¶20} An out-of-court-statement offered to show why a witness acted

in a particular manner is not hearsay. State v. Maurer,

,

(1984); see, also, State v. Messer,

,

(1994). A trial court has broad discretion to Washington App. No. 12CA14 13

determine whether a declaration should be admissible under the various

exceptions to the hearsay rule. State v. Rohdes,

,

(1986), disapproved on other grounds by State v. Kidder,

,

(1987).

B. LEGAL ANALYSIS

{¶21} In this matter, Carrie Roush testified she picked up her

mother’s prescription for pain medication on February 18th. Her mother,

who then stayed with her a week, resisted taking her Vicodin and had nearly

an entire 60-day supply with her when she returned to her apartment the

following week. This testimony constitutes personal knowledge of her

mother’s ownership of the pills and the number of pills in her prescriptions.

Thus, Ms. Roush’s statement “I received a phone call from my mom that

some of her pills were missing” assisted in explaining the context of Ms.

Roush’s subsequent observations and behavior of going to her mother’s

home, counting the pills, and urging her mother to call the police. This type

of out-of-court statement is similar to that in State v. Spires, 4th Dist. No.

10CA10,

,

.

{¶22} In Spires, Appellant was convicted of various counts of

burglary and breaking and entering. On appeal, one of the assignments of

error presented was the trial court committed plain error in permitting Washington App. No. 12CA14 14

hearsay to be entered into the record. At issue was a witness’s testimony

that she “received a call at work from her mother informing her that her

house alarm was going off.” Appellant argued the statement was

inadmissible hearsay. The State contended the statement was not offered for

the truth of the matter asserted but rather for the effect on the listener, to

show why she went home and discovered items stolen. We agreed, citing

State v. Wente (8th Dist. No. 85501,

(statement

by burglary victim that she received a call from her mother informing her

that her house had been broken into was not offered for the truth of the

matter asserted and therefore was not inadmissible hearsay).

{¶23} In this instance we find no error, let alone plain error. We

affirm the trial court’s ruling and overrule the first assignment of error.

ASSIGNMENT OF ERROR TWO

{¶24} Appellant also contends the trial court erred in admitting

his tape-recorded statements, which amount to a confession, in the absence

of a corpus delicti. At trial, the State played a tape-recording for the jury.

Carrie Roush identified the voices on the recording as Appellant’s and their

mother’s. In the recording, Appellant is heard admitting to his mother that

he took five of her pain pills. Appellant objected to the admission of this

evidence and argued the tape-recorded conversation established the corpus Washington App. No. 12CA14 15

delicti in and of itself, and there had not been enough evidence at trial to

establish a crime had been committed to allow Appellant’s confession on the

tape-recording. Citing Crawford v. Washington,

,

(2004), Appellant further argued Ms. Young’s statements on the tape-

recording were hearsay.

{¶25} The trial court found that as to the corpus delicti rule, there was

sufficient evidence to permit the tape-recorded confession to be admitted.

The court further found there was no Crawford problem as to the mother’s

statements as she was not told what to say by law enforcement and no

problem as to Appellant’s statements as he was not in custody or making a

testimonial statement. However, the court issued the limiting instruction

previously set forth in our statement of facts as to the mother’s statements on

the tape-recording. We begin our analysis of this assignment of error with a

review of the law pertinent to the corpus delicti rule.

A. STANDARD OF REVIEW

{¶26} We review a trial court’s decision as to whether the state

established the corpus delicti of a crime under a manifest weight-of-the-

evidence standard. See In re W.B. II, 4th Dist. No. 08CA18-2009-Ohio

1707,

, at ¶31 and 32. Thus, we will uphold the trial court’s

decision as long as the record contains some competent and credible Washington App. No. 12CA14 16

evidence independent of the defendant’s confession to establish that a crime

occurred. See, e.g., State v. Maranda,

,

(1916), paragraphs one and two of the syllabus; W. B. at ¶ 32.

{¶27} The decisions in W.B. and State v. Puckett,

,

(4th Dist. 2010) contain detailed explanation of the

corpus delicti requirement:

The corpus delicti of a crime is essentially the fact of the crime itself. State v. Hofer, 4th Dist. No. -7CA835,

[

], ¶ 36; see, also, State v. Haynes,

,

(1998). It is comprised of “(1) The act [and] (2) the criminal agency of the act.” State v. Maranda,

,

(1916), paragraph one of the syllabus. See, also, State v. Edwards,

,

(1976), vacated on other grounds,

,

(1978); [State v.] Van

[

] (1988), at 261,

. ‘It has long been established as a general rule in Ohio that there must be some evidence outside of a confession, tending to establish the corpus delicti, before such confession is admissible.’ Maranda at paragraph two of the syllabus. In other words, the state must produce independent evidence of the corpus delicti of a crime before the court may admit an extrajudicial confession. Hofer at ¶ 36, citing Maranda at paragraph two of the syllabus and

.

“The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make it a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged.” Maranda at paragraph two of the syllabus. (Emphasis sic.); see, also

That evidence may be direct or circumstantial.

; State v. Nicely,

,

Washington App. No. 12CA14 17

(1988); State v. Clark,

,

(1995).

{¶28} In

the Supreme Court of Ohio noted the

historical origins of the corpus delicti rule were designed to protect an

accused from being convicted of a crime that never occurred. The court

stated that, in light of the “vast number of procedural safeguards protecting

the due –process rights of criminal defendants, the corpus delicti rule is

supported by few practical or social-policy considerations.’ (Emphasis sic.)

,

. Accordingly, there is “little reason to apply

the rule with dogmatic vengeance.” Id.; see, also, State v. Ferris, 4th Dist.

No. 00CA12,

(Jan.29, 2001), at *6. “The burden upon the

state to provide some evidence of the corpus delicti is ***minimal.”

; see, also, Van

B. LEGAL ANALYSIS

{¶29} In this matter, we find the State carried its minimal burden of

proving independent evidence of the corpus delicti of the crime of theft of a

dangerous drug. Appellant was charged with theft, R.C.913.02(A)(1)(2)(3)

and (B)(1)(6), which reads:

(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: Washington App. No. 12CA14 18

(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;

(3) By deception:

(B)(1) Whoever violates this section is guilty of theft.

(6) If the property stolen is any dangerous drug, a violation of this section is theft of drugs, a felony of the fourth degree, or, if the offender previously has been convicted of a felony drug abuse offense, a felony of the third degree.

{¶30} Removing Appellant’s confession from consideration, there

was other independent evidence that a crime was committed. Carrie Roush

testified she assisted her mother by picking up her prescriptions which

included her pain medication. During the time Ms. Young stayed with her

daughter, she resisted using her Vicodin pills. When Ms. Young returned to

her apartment, she had nearly the entire prescription, a 60-day supply, After

the telephone call, Ms. Roush went to her mother’s home and recounted her

pills and noted that half of the prescription was missing. Ms. Roush’s

testimony regarding her actions (excluding the alleged hearsay) provides

evidence that her mother was deprived of her pain medication. Ms. Roush

further testified that to her knowledge, only Appellant and his ex-wife were

at Mrs. Young’s home during the relevant time frame (the last weekend in

February) when her mother returned home with nearly the full prescription Washington App. No. 12CA14 19

of pain medication and the Sunday or Monday that pills were noticed

missing. We agree with the trial court’s finding that the State presented

sufficient evidence to establish the corpus delicti of the crime.

{¶31} We also agree with the trial court’s ruling that there was no

Crawford violation in this matter. The Sixth Amendment to the United

States Constitution provides, “[i]n all criminal prosecutions, the accused

shall enjoy the right * * * to be confronted with the witnesses against him.”

The Supreme Court of the United States has “held that this bedrock

procedural guarantee applies to both federal and state prosecutions.”

Crawford v. Washington,

,

(2004), citing Pointer

v. Texas,

,

(1965). Likewise, Section 10, Article

I of the Ohio Constitution provides, “[i]n any trial, in any court, the party

accused shall be allowed * * * to meet the witnesses face to face.” Before

its admission, “[w]here testimonial evidence is at issue * * * the Sixth

Amendment demands what the common law required: unavailability and a

prior opportunity for cross examination.” Crawford,

.

{¶32} Ohio employs two tests to determine whether a statement is

testimonial, dependent upon the status of the recipient. When statements are

made to non-law enforcement, Ohio has adopted the “objective witness”

test, whereby “a testimonial statement includes one made ‘under Washington App. No. 12CA14 20

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.’” State v. Stahl,

,

,

, at ¶ 36, quoting

.

{¶33} In this matter, Appellant was not in custody and his statements

on the tape-recording were not testimonial. Although his mother’s

statements on the tape-recording are arguably, hearsay, we agree that the

limiting instruction was sufficient. The trial court cautioned the jury that the

mother’s statements were to be heard for the purpose of placing Appellant’s

words in context, and not for the truth of the matters asserted in the

statements.

{¶34} As we have agreed with the trial court’s finding that there was

sufficient evidence to establish the corpus delicti of the alleged crime in this

matter, we further find that the trial court did not err in allowing Appellant’s

tape-recorded confession to be admitted into evidence. Therefore we

overrule this assignment of error.

ASSIGNMENT OF ERROR THREE

{¶35} Appellant also contends that jury’s judgment was based

upon insufficient evidence and is against the manifest weight of the

evidence. For the reasons which follow, we disagree. Washington App. No. 12CA14 21

A. STANDARD OF REVIEW

{¶36} When reviewing a case to determine whether the record

contains sufficient evidence to support a criminal conviction, our function

“is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. 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,

,

(1991), paragraph two of the syllabus. See, also, Jackson v.

Virginia,

,

(1979).

{¶37} This test raises a question of law and does not allow us to

weigh the evidence. State v. Martin,

,

(1983). Rather, the test “gives full play to the responsibility of the trier

of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.”

. We reserve the issues of the weight given to the evidence and the

credibility of witnesses for the trier of fact. State v. Thomas,

,

(1982); State v. DeHass,

,

(1986), paragraph one of the syllabus. Washington App. No. 12CA14 22

{¶38} Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is much broader than

that for sufficiency of the evidence. State v. Banks,

,

(1992); State v. Martin,

,

(1983). In determining whether a criminal conviction is against

the manifest weight of the evidence, we must review the entire record, weigh

the evidence and all the reasonable inferences, consider the credibility of the

witnesses, and determine 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 and a new trial granted. State v.

Garrow,

,

;

.

{¶39} “A reviewing court will not reverse a conviction where there is

substantial evidence upon which the court could reasonably conclude that all

the elements of an offense have been proven beyond a reasonable doubt.”

State v. Eskridge,

,

(1988), paragraph two

of the syllabus. Whether the evidence supporting a defendant’s conviction is

direct or circumstantial does not bear on our determination. “Circumstantial

evidence and direct evidence inherently possess the same probative value Washington App. No. 12CA14 23

and therefore should be subjected to the same standard of proof.” Jenks at

paragraph one of the syllabus.

B. LEGAL ANALYSIS

{¶40} The parties stipulated that the pain medication belonging

to Clara Young contained Hydrocodone. Carrie Roush acknowledged in

her testimony her mother’s prescribed pain medication was Vicodin. Ms.

Roush testified she assisted her mother with her various medications and,

upon receipt of a phone call from her mother, discovered, herself, half of the

pills in the prescription missing. 5 In summary, Carrie Roush’s testimony,

without the alleged hearsay statement, established that her mother had a

nearly full prescription of pain medication when she went home and, after

the weekend, when Ms. Roush counted the pills again, approximately half

were missing. This testimony in and of itself establishes ownership and

deprivation. The alleged hearsay statement only explains how or why she

went to her mother’s house to count the pills.

{¶41} The State also presented testimony from Patrolman Freed, who

testified he was sent to make contact with Clara Young. Patrolman Freed

also testified he assisted her in tape-recording a conversation between Mrs.

Young and Appellant. He testified the purpose of the tape-recording was to 5 We note although the State sufficiently links the allegation in the indictment regarding Hydrocodone to the testimony regarding “pain medication” and “Vicodin,” no such link is made through testimony to prove the alleged theft of approximately ten Cyclobenzaprine pills. Washington App. No. 12CA14 24

elicit a confession from Appellant about stealing the pills. However,

Patrolman Freed did not tell Ms. Young what to say to her son. This tape

recording was played for the jury and the jury was able to hear the Appellant

promptly admit he took five pain pills. The tape recording was admitted as

State’s Exhibit B.

{¶42} The defense attempted to create reasonable doubt by portraying

the victim as a confused and emotional woman. Appellant and his girlfriend

both testified that Mrs. Young had been confused and mistaken in the past

when she accused Appellant of harming her bird and stealing a gas card.

Both denied Appellant’s involvement in any crime. Appellant testified his

father died in 2002 and the victim was Appellant’s only surviving parent.

The transcript indicates Appellant became tearful. Appellant specifically

testified he told his mother he took the pills to “appease her” and “stop the

arguing.”

{¶43} The weight to be given evidence and the credibility to be

afforded testimony are issues to be determined by the trier of fact. State v.

Frazier,

,

,

, citing

State v. Grant, Ohio St.3d 465, 477,

,

. The

fact finder “is best able to view the witnesses and observe their demeanor,

gestures, and voice inflections, and use these observations in weighing the Washington App. No. 12CA14 25

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland,

,

(1984). It appears that here, the jury

found Carrie Roush’s testimony that her mother’s Vicodin pills were

missing to be credible. It also appears the jury did not choose to believe

Appellant’s explanation as to why he so quickly admitted to his mother over

the phone taking five pain pills from her. We will not substitute our

judgment for that of the jury under these circumstances.

{¶44} In light of the evidence adduced at trial, we cannot conclude

the jury lost its way and created a manifest miscarriage of justice by finding

Appellant guilty of one count of theft of a dangerous drug. Further, we

conclude that there was substantial evidence upon which the jury could have

concluded that all the essential elements of the crime charged had been

proven beyond a reasonable doubt. As such, we overrule Appellant’s third

assignment of error.

ASSIGNMENT OF ERROR FOUR

{¶45} As Appellant’s final assignment of error, he incorporates

his arguments from the preceding assignments of error and specifically

contends his counsel rendered ineffective assistance by failing to object to

Carrie Roush’s statement “I received a phone call from my mom that some

of her pills were missing.” In Appellant’s reply brief, he further asserts Washington App. No. 12CA14 26

counsel erred by (1) eliciting Carrie Roush’s testimony regarding

Appellant’s character trait of “fighting back,” and (2) eliciting Chief Sams’

testimony regarding the victim’s emotional state. For the reasons which

follow, we disagree.

A. STANDARD OF REVIEW

{¶46} Criminal defendants have a right to counsel, including a right

to the effective assistance from counsel. McMann v. Richardson,

,

(1970); State v. Stout, 4th Dist. No. 07CA5, 2008-

Ohio-1366, ¶ 21. To establish constitutionally ineffective assistance of

counsel, a defendant must show (1) that his counsel’s performance was

deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington,

,

(1984); State v. Issa,

,

(2001); State v. Goff,

,

(1998). “In

order to show deficient performance, the defendant must prove that

counsel’s performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel’s error, the result of the proceeding would

have been different.” State v. Conway,

, 2006 Ohio-

2815,

(citations omitted). “Failure to establish either Washington App. No. 12CA14 27

element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,

. Therefore, if one element is dispositive, a court need

not analyze both. State v. Madrigal,

,

(2000) (stating that a defendant’s failure to satisfy one of the elements

“negates a court’s need to consider the other”).

{¶47} When considering whether trial counsel’s representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland,

. Thus, “the defendant

must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”

“A

properly licensed attorney is presumed to execute his duties in an ethical and

competent manner.” State v. Taylor, 4th Dist. No. 07CA1,

, citing State v. Smith,

,

(1985).

Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel’s errors were so serious that he or she failed to

function as the counsel guaranteed by the Sixth Amendment. State v.

Gondor,

, 2006 Ohio-6679,

; State v.

Hamblin,

,

(1988). Washington App. No. 12CA14 28

{¶48} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that but for counsel’s errors, the result of the

trial would have been different. State v. White,

, 23,

(1998); State v. Bradley,

,

(1989), at paragraph three of the syllabus. Furthermore, courts may not

simply assume the existence of prejudice, but must require that prejudice be

affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,

, ¶ 22; State v. Tucker, 4th Dist. No. 01CA2592 (Apr.2,

2002); State v. Kuntz, Ross App. No. 1691 (Feb. 26, 1992).

B. LEGAL ANALYSIS

{¶49} We do not believe appellant can show a reasonable

probability that, but for counsel’s error, the result of the proceeding would

have been different. In this matter, had counsel lodged an objection to

Carrie Roush’s testimony that she “received a phone call from [her]mom

that some of her pills were missing,” the State would have made the same

argument as it has on appeal. The same analysis regarding the admission of

Ms. Roush’s statement would apply and the trial court would likely have

admitted the statement. The State’s position regarding Ms. Roush’s

statement is that the statement was not offered for the truth of the matter

asserted, but was offered to show personal knowledge regarding her Washington App. No. 12CA14 29

mother’s prescription and it assisted in explaining her subsequent actions of

going to her mother’s house and recounting the pills in her prescription.

Furthermore, as a practical matter, lodging the objection and/or requesting

some type of curative instruction would simply call attention to it and

perhaps unduly emphasize the complete content of the statement in the

jury’s mind. We are not convinced that the outcome of the proceeding

would have been different had counsel made an objection. We do not find

Appellant was prejudiced by counsel’s omission.

{¶50} In reference to assignment of error two incorporated herein,

Appellant’s argument that the trial court erred in admitting his confession in

the absence of a corpus delicti, we find Appellant was not rendered

ineffective assistance. Appellant lodged an objection to the playing of the

tape recording at the appropriate juncture at trial. He argued the objection

based on the corpus delicti rule and on the hearsay rules. He renewed his

objection when the tape recording was offered into evidence at the close of

the State’s case. We do not find counsel was prejudiced by counsel’s action

in this regard.

{¶51} In reference to Appellant’s assignment of error three, the

“sufficiency of the evidence” and “manifest weight of the evidence

arguments” incorporated herein, Appellant again argues that counsel’s Washington App. No. 12CA14 30

failure to object to the alleged hearsay statement of Carrie Roush allowed

the only evidence of ownership and deprivation to be admitted. However, as

we have reasoned above, Ms. Roush’s testimony that she assisted her mother

with her medications after her hospital stay and was aware of what she took

and the amount she had, coupled with her testimony that she counted them

with her mother later and half were missing, alone establishes the ownership

and deprivation. The alleged hearsay that she “received a phone call from

her mother that half her pills were missing” only clarifies why she went to

her mother’s to count the medicine. And as indicated above, we consider it

reasonable trial strategy not to call attention to the statement by objecting to

it.

{¶52} In Appellant’s reply, he further argues counsel erred by

eliciting testimony from Carrie Roush regarding her brother’s trait of

“fighting back.” As discussed above, the defense strategy was to portray the

victim as a woman prone to making rash accusations against Appellant,

emotional, anxious, and often mistaken. Defense counsel elicited testimony

from Ms. Roush which further supported this characterization of the victim.

Ms. Roush admitted her mother did not handle family strife well. She

testified her mother would have anxiety attacks. She testified she questioned

her mother’s memory. Counsel elicited Ms. Roush’s opinion that her mother Washington App. No. 12CA14 31

“jumps to conclusions” and was “confrontational.” Against the backdrop of

testimony that the mother had a volatile emotional state and memory

problems, Ms. Roush’s testimony that her brother would “fight back”

against an accusation appears harmless. Moreover, Appellant took the

opportunity to testify he did not “fight back” in this particular instance

because he was tired of arguing with his mother and wanted to appease her.

{¶53} Finally, Appellant argues counsel was deficient for calling

Chief Sams and eliciting testimony from him that the victim’s emotional

state was upset and angry. We disagree. The direct testimony of Aimee

Young and Appellant also indicated an emotional woman known to argue

with her children and grandchildren. The substance of Chief Sams’

testimony also showed B& W Pharmacy records were never investigated,

the pill bottle was never photographed or fingerprinted, the pills were never

counted, and no one took a statement from Appellant or his ex-wife. He

testified no search was made of Appellant’s residence. This testimony from

Chief Sams was elicited, ostensibly, to raise reasonable doubt in this matter.

Possibly, to further discredit the State’s case, Chief Sams testified that

Patrolman Freed was no longer with the Beverly Police Department. As

such, we do not find Appellant was prejudiced by the actions of trial counsel Washington App. No. 12CA14 32

with regard to the testimony elicited from Carrie Roush or Chief Sams. As

such, we also overrule this assignment of error.

JUDGMENT AFFIRMED. Washington App. No. 12CA14 33

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment & Opinion. Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: ______________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.