[Cite as State v. Schuttinger,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13 CA 83 TEILA SCHUTTINGER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 13 CR 79

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 7, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH OSWALT CARRIE WOOD PROSECUTING ATTORNEY ASSISTANT STATE PUBLIC DEFENDER 20 South Second Street 250 East Broad Street, Suite 1400 Newar, Ohio 43055 Columbus, Ohio 43215 Licking County, Case No. 13 CA 83 2

Wise, J.

{¶1}. Appellant Teila Schuttinger appeals her conviction, in the Court of

Common Pleas, Licking County, on one count of tampering with records. Appellee is the

State of Ohio. The relevant facts leading to this appeal are as follows.

{¶2}. On February 5, 2013, appellant went to the Licking County Municipal

Clerk's Office to discuss and review the court file on a traffic case regarding her adult

son Nicholas, who had been ticketed for reckless operation, speeding, and a turn-signal

violation in Licking County in 2010. Appellant first approached Casey Zimmerman, a

deputy municipal clerk for assistance. Casey asked Brenda McOsker, another

employee of the clerk's office, to give her a hand with the request. Appellant thereupon

presented McOsker with a certificate of completion from a remedial driving school,

listing appellant's son as the student. According to McOsker, appellant appeared to

believe that presentation of her son's completion of the driving course should have

resulted in dismissal of his violation. McOsker later testified that aspects of the remedial

driving course form looked unusual and that it bore a stamp that was not from her office.

Tr. at 97.

{¶3}. McOsker at some point asked Zimmerman to retrieve the court file at

issue from the basement. Appellant and McOsker then reviewed the matter. McOsker in

the meantime was also trying to help appellant by contacting the probation department

and calling the Bureau of Motor Vehicles to get information pertaining to remedial

driving course forms. At one point, she stepped away from the counter when appellant

placed a cellular call to her insurance agent. When McOsker returned to the counter, Licking County, Case No. 13 CA 83 3

she noticed the court file was missing. Appellant had not been given permission to

remove the file. The incident was recorded on a security camera in the clerk's office.

{¶4}. According to Marcia Phelps, the Licking County Municipal Clerk, McOsker

came to her office and informed her about the missing file. Phelps asked appellant if

she had picked up the case file. Appellant denied taking it. Phelps also stated that she

looked into appellant's bag for the documents, but that she was not shown the whole

bag.

{¶5}. On or about February 12, 2013, appellant was arrested.

{¶6}. On February 27, 2013, a package was hand delivered to the post office,

where the Licking County Court of Common Pleas had a post-office box. Olivia Thorp

from the Licking County Court of Common Pleas recognized the name on the

documents, and called the prosecutor's office. Tr. at 178-179. Eric McCort, the chief

investigator from the prosecutor's office, picked up the documents. Id. at 183. The State

later introduced the contents of this package into evidence, which contained the original

pleadings from the municipal court, including a traffic ticket with the name "Schuttinger."

Id. at 178, 185, 189. McCort also obtained related documents that appellant’s daughter,

A.S., tried to bring to the jail at appellant’s behest, although these documents did not

include the court file.

{¶7}. On March 15, 2013, appellant was indicted on one count of tampering with

records, in violation of R.C. 2913.42(A)(1) and (B)(4), a felony of the third degree.

{¶8}. The State purportedly made a plea offer recommending that in exchange

for appellant pleading guilty to R.C. 2913.42(A)(1) and (B)(4), the State would urge the

trial court to sentence her to community control. Licking County, Case No. 13 CA 83 4

{¶9}. The plea offer apparently was rejected, and the case proceeded to a jury

trial on August 13 and 14, 2013.

{¶10}. At trial, the State asserted that after appellant had been charged, she

anonymously returned those documents to the court. Tr. at 284. The State proposed

that appellant took the documents after her first attempt to reduce her family insurance

rates failed. Id. at 275, 281, 288, 290. Appellant conceded at trial that she had prior

convictions for theft and receiving stolen property in Franklin County.

{¶11}. The jury convicted appellant on the count of records tampering. The trial

court imposed an 18-month prison term, a $5,000.00 fine, and costs. Judgment Entry,

Aug. 14, 2013. The trial court also imposed court-appointed counsel costs, according to

her ability to pay.

{¶12}. On September 12, 2013, appellant filed a notice of appeal. She herein

raises the following five Assignments of Error:

{¶13}. "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

CONSIDER STATUTORY SENTENCING FACTORS.

{¶14}. "II. THE STATE FAILED TO COMPLY WITH THE NOTICE

REQUIREMENT OF OHIO EVID.R. 404(B) FOR ITS INTRODUCTION OF OTHER

CRIMES, WRONGS, OR ACTS EVIDENCE, AND, AS A RESULT, DEPRIVED MRS.

SCHUTTINGER OF A FAIR TRIAL.

{¶15}. "III. THE STATE COMMITTED MISCONDUCT WHEN IT ASKED THE

JURY TO FULFILL THE ROLE OF AN EXPERT WITNESS AND DEPRIVED THE

DEFENDANT OF A FAIR TRIAL. Licking County, Case No. 13 CA 83 5

{¶16}. "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND

MRS. SCHUTTINGER 'NOT INDIGENT' FOR PURPOSES OF IMPOSING COUNSEL

FEES.

{¶17}. "V. MRS. SCHUTTINGER WAS DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATE (SIC) CONSTITUTION AND SECTION 16,

ARTICLE I OF THE OHIO CONSTITUTION WHEN DEFENSE COUNSEL (1) FAILED

TO OBJECT TO INTRODUCTION OF UNNOTICED OHIO EVID.R. 404(B) EVIDENCE;

(2) FAILED TO CALL THE APPROPRIATE WITNESS TO INTRODUCE MRS.

SCHUTTINGER'S

{¶18}. DOCUMENTS THAT WERE TAKEN FROM A. S.; (3) FAILED TO

OBJECT TO THE IMPOSITION OF COUNSEL FEES WITHOUT THE APPROPRIATE

FINDINGS; (4) FAILED TO OBJECT TO THE TRIAL COURT'S FAILURE TO

CONSIDER THE FACTORS IN R.C 2929.12; AND (5) FAILED TO OBJECT TO THE

STATE'S REQUEST OF THE JURORS TO SERVE AS EXPERT WITNESS (SIC)

DURING CLOSING ARGUMENT."

I.

{¶19}. In her First Assignment of Error, appellant argues the trial court abused its

discretion in sentencing her pursuant to R.C. 2929.11 and R.C. 2929.12. We disagree.

{¶20}. R.C. 2929.11 and 2929.12 require consideration of the purposes of felony

sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis,

,

, 2006–Ohio–855, ¶ 38. As an initial matter, we must

address our proper appellate standard of review in this area of sentencing. The State Licking County, Case No. 13 CA 83 6

urges in its response brief that in light of R.C. 2953.08(G)(2), the Kalish abuse-of-

discretion standard is not applicable in reviewing the aspects of R.C. 2929.11 and

2929.12. In State v. Kalish,

,

, 2008–Ohio–4912, a

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.”

. If this

first step is satisfied, the second step requires the trial court's decision be reviewed

under an abuse-of-discretion standard.

{¶21}. R.C. 2953.08(G)(2) presently reads in pertinent part as follows:

{¶22}. "* * * The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court's standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

{¶23}. "(a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶24}. "(b) That the sentence is otherwise contrary to law."

{¶25}. We note subsection (G)(2)(a) does not reference R.C. 2929.11 or

2929.12. Moreover, the General Assembly has not removed the "discretion" language in

R.C. 2929.12(A). We further note this Court has continued to recite Kalish in regard to Licking County, Case No. 13 CA 83 7

R.C. 2929.11 and 2929.12 issues. See State v. Oester, 5th Dist. App.No.

2012CA00118,

. We will therefore apply Kalish in reference to the

present assigned error.

{¶26}. Appellant herein first specifically argues the trial court failed to consider

the need for "rehabilitating the offender" as set forth under R.C. 2929.11(A). Appellant

points out that the trial court denied her request for a presentence investigation,

contending that the judge thus failed to properly consider community control in lieu of

prison time. However, this Court has recognized that a trial court is not required to

obtain a PSI report, unless it is imposing community control or felony probation. See

State v. Ewert, 5th Dist. Muskingum No. CT2012-0002,

.

{¶27}. Appellant next maintains the trial court failed to take into account the sub-

factor of avoiding an unnecessary burden on state or local resources, also set forth

under R.C. 2929.11(A). She also contends the trial court made improper reference to

her right to go to trial by stating the following during sentencing. " ***The video itself

wasn't good enough for you. You demanded DNA evidence, or you wanted the State to

spend thousands of dollars to prove beyond all doubt that your offense occurred, not

beyond a reasonable doubt." Tr. at 316-317.1

{¶28}. We note that “in exercising its discretion, a court is merely required to

‘consider’ the purposes of sentencing in R.C. 2929.11 and the statutory * * * factors set

forth in R.C. 2929.12.” State v. Sutton, Cuyahoga App.No. 97132, 2012–Ohio–1054, ¶

11, citing State v. Lloyd, Lake App.No. 2006–L–185, 2007–Ohio–3013, ¶ 44 (internal

1 Appellant at this juncture also adds a challenge to the imposition of a $5,000.00 fine in this case; we will address the issue of her indigency status subsequently in this appeal. Licking County, Case No. 13 CA 83 8

quotations omitted). In the case sub judice, the trial court stated both on the record and

in its sentencing entry that it had considered the principles and purposes of sentencing

under R.C. 2929.11, and the seriousness and recidivism factors under R.C. 2929.12.

See Tr. at 316; Sentencing Entry, August 14, 2013, at 1. Therefore, upon review of the

record and the aforesaid arguments of appellant, we find the trial court properly

considered the purposes and principles of felony sentencing, and the factors of

seriousness and recidivism, and we find no error of law or abuse of discretion in the trial

court's 18-month sentence in this matter.

{¶29}. Appellant's First Assignment of Error is overruled.

II.

{¶30}. In her Second Assignment of Error, appellant appears to argue the trial

court erred under Evid.R. 404(B) by allowing the State to introduce testimony

suggesting appellant engaged in deceit by altering Nicholas's remedial driving

certificate. We disagree.

{¶31}. The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987),

,

. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802.

Our task is to look at the totality of the circumstances in the case sub judice, and

determine whether the trial court acted unreasonably, arbitrarily or unconscionably in

allowing or excluding the disputed evidence. State v. Oman (Feb. 14, 2000), Stark App .

No. 1999CA00027,

.

{¶32}. Evid.R. 404(B) sets forth an exception to the general rule against

admitting evidence of a person's other wrongs or bad acts. Said rule states as follows: Licking County, Case No. 13 CA 83 9

"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. In criminal cases, the proponent

of evidence to be offered under this rule shall provide reasonable notice in advance of

trial, or during trial if the court excuses pretrial notice on good cause shown, of the

general nature of any such evidence it intends to introduce at trial." (Emphasis added).

{¶33}. Both Brenda McOsker and Marcia Phelps testified at trial that the driving-

course completion document provided by appellant looked unusual and that they did not

recognize the stamp on the document. See Tr. at 97, 164. In closing, the State argued

that "Brenda told you she had never seen a document that looked quite like this. It

struck her as odd that it had the weird Clerk of Courts stamp there at the bottom that

says October 20 something, the top is cut off * * *, that there was no year on the

completion of the certificate, that there was nothing in the file to indicate that if this

remedial driving course was completed the case would be dismissed." Tr. at 290.

{¶34}. Appellant herein specifically maintains the State, in violation of Evid.R.

404(B) and the notice requirement therein, was thus trying to create the inference that

appellant had attempted to wrongfully change the outcome of her son's traffic case

through deceit, something for which she had not been charged.

{¶35}. We first note that appellant did not object to the challenged testimony at

trial. Where there is no objection raised to evidence alleged by the defendant to be in

violation of Evid.R. 404(B), we review the issue under a plain error standard. See State

v. Teagarden, 5th Dist. Licking No. 08-CA-39,

. Even so, we find Licking County, Case No. 13 CA 83 10

the testimony by McOsker and Phelps regarding the driving course document was

simply setting the stage as to the reason for appellant's protracted interaction with the

clerk's office personnel; it was not admitted to undermine appellant's character. Indeed,

"[a]ll contextual testimony that the jury hears that explains the wider 'story' or

circumstances beyond the immediate facts of the crime will invariably carry some

prejudice—in the sense that this larger story will rarely make the defendant look good."

State v. Swiergosz (6th Dist.),

,

, ¶ 25.

{¶36}. Upon review, we find no existence of plain error in regard to appellant's

claim under Evid.R. 404(B).

{¶37}. Appellant's Second Assignment of Error is overruled.

III.

{¶38}. In her Third Assignment of Error, appellant argues the State engaged in

prosecutorial misconduct by asking the jurors to review the handwriting on a mailed

envelope without calling an expert witness. We disagree.

{¶39}. Generally, a prosecutor's conduct at trial is not grounds for reversal unless

that conduct deprives the defendant of a fair trial. State v. Loza (1994),

,

.

{¶40}. The Staff Notes to Evid.R. 901(B)(3) provide in pertinent part:

{¶41}. “* * * Rule 901(B)(3) provides that an expert or the jury, as trier of fact,

may compare the handwriting in question with a specimen of handwriting which has

been authenticated. Ohio cases have followed such procedure. * * *.” (Emphasis

added). Licking County, Case No. 13 CA 83 11

{¶42}. See, also, State v. Cooper, 8th Dist. Cuyahoga No. 86437, 2006-Ohio-

817, ¶ 20.

{¶43}. In the case sub judice, the prosecutor asked the jury to compare

handwriting from the envelope that had arrived at the Licking County Clerk's Office after

appellant had reported to pretrial release, with the letter appellant wrote while in the

municipal clerk's office on February 5, 2013. Tr. at 289-290. In light of Evid.R. 901(B)(3),

we find no reversible error in this regard on the basis of prosecutorial misconduct.

{¶44}. Appellant's Third Assignment of Error is overruled.

IV.

{¶45}. In her Fourth Assignment of Error, appellant contends the trial court erred

in finding her to be non-indigent for purposes of counsel fees. We disagree.

{¶46}. R.C. 2941.51(D) states in pertinent part: "The fees and expenses

approved by the court under this section shall not be taxed as part of the costs and shall

be paid by the county. However, if the person represented has, or reasonably may be

expected to have, the means to meet some part of the cost of the services rendered to

the person, the person shall pay the county an amount that the person reasonably can

be expected to pay. ***."

{¶47}. In the case sub judice, prior to trial, the State challenged the appointment

of counsel for appellant. A hearing was therefore conducted before the trial court on

August 9, 2013. Based on its formula for indigency status, the trial court denied the

State's motion for removal of appointed counsel. However, after the trial, at sentencing,

the trial court stated: "I'll also impose a $5,000 fine finding you not to be indigent. I'll

impose courts costs, costs of prosecution and counsel fees." Tr. at 317. In its Licking County, Case No. 13 CA 83 12

subsequent judgment entry, the trial court stated that "[t]he Defendant shall pay court

appointed counsel costs *** according to the Defendant's ability to pay." Judgment

Entry, Aug. 14, 2014, at 2. The fine was then imposed without reference to ability to

pay.

{¶48}. Appellant, citing State v. Johnson, 3d Dist. Wyandot No. 16-03-09, 2004-

Ohio-1513, ¶50, argues that when a trial court fails to make an affirmative finding of the

defendant's present or future ability to pay indigent counsel fees in its journal entry of

sentence, the trial court errs in assessing indigent counsel fees.

{¶49}. While we do not necessarily find Johnson applicable in every case, under

the circumstances of the case sub judice, we find the court's use of the conditional

“ability to pay” language conforms to the spirit of the statute's requirements.

{¶50}. In regard to the assessment of the $5,000.00 fine, raised earlier in

appellant’s brief, we note under R.C. 2929.19(B)(5), a trial court must “consider” a

defendant’s future ability to pay. However, a trial court is not required to expressly state

that it engaged in such consideration. See State v. Parker, 2nd Dist. Champaign No.

03CA17,

.

{¶51}. Appellant's Fourth Assignment of Error is therefore overruled.

V.

{¶52}. In her Fifth Assignment of Error, appellant argues she received ineffective

assistance of trial counsel on several grounds. We disagree.

{¶53}. The two-part test for ineffective assistance of counsel in criminal cases is

set forth in Strickland v. Washington (1984),

,

,

. A claim for ineffective assistance of counsel requires a two-prong analysis. Licking County, Case No. 13 CA 83 13

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness.

State v. Bradley (1989),

,

.

{¶54}. In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential.

. Because of the difficulties inherent in determining whether

effective assistance of counsel was rendered in any give case, a strong presumption

exists counsel's conduct fell within the wide range of reasonable professional

assistance.

{¶55}. However, it is well-established that a reviewing court need not determine

whether counsel's performance was deficient before examining the prejudice suffered

by the appellant as a result of the alleged deficiencies. See

, quoting

. Furthermore, “[a] defendant must demonstrate actual prejudice, and

speculation regarding the prejudicial effects of counsel's performance will not establish

ineffective assistance of counsel.” State v. Halsell, 9th Dist. Summit No. 24464, 2009–

Ohio–4166, ¶ 30, citing State v. Downing, 9th Dist. Summit No. 22012, 2004–Ohio–

5952, ¶ 27. Actual prejudice means there is a reasonable probability that but for

counsel's unprofessional errors, the outcome of the case would have been different.

See State v. Adams, Licking App.No. 2005–CA–0024, 2005–Ohio–5211, ¶ 18.

{¶56}. Appellant contends she was deprived of her right to effective assistance of

counsel based on: (1) failure to object to introduction of alleged Ohio Evid.R. 404(B) Licking County, Case No. 13 CA 83 14

evidence, (2) failure to call the appropriate witness to introduce appellant's documents

that were taken from her daughter, A.S., (3) failure to object to the imposition of counsel

fees without the appropriate findings, (4) failure to object to the trial court's failure to

consider the factors in R.C. 2929.12, and (5) failure to object to the State's purported

request of the jurors to serve as “expert witnesses” during closing argument.

{¶57}. In regard to the failure of defense counsel objections in regard to Evid.R.

404(B), R.C. 2929.12, and the lack of a handwriting expert, based on our previous

analyses of these issues in the present appeal, we find no showing that counsel's

performance fell below an objective standard of reasonable representation. As to the

failure to object to counsel fees, we find no ineffective assistance in light of our redress

of the Fourth Assignment of Error. Finally, in regard to the failure to call additional

witnesses concerning the documents A.S. had in her possession, we emphasize that

"complaints of uncalled witnesses are not favored, because the presentation of

testimonial evidence is a matter of trial strategy and because allegations of what a

witness would have testified are largely speculative." State v. Phillips, Stark App.No.

2010CA00338, 2011–Ohio–6569, ¶ 26, quoting Buckelew v. United States (5th

Cir. 1978),

. Accordingly, we find appellant's claim of prejudice based

on ineffective assistance in this regard to be speculative and unpersuasive. Licking County, Case No. 13 CA 83 15

{¶58}. Accordingly, appellant's Fifth Assignment of Error is overruled.

{¶59}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Licking County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

JWW/d 0718 Licking County, Case No. 13 CA 83 16