[Cite as State v. Stevens,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2015-09-020

: OPINION - vs - 2/13/2017 :

HARLAN L. STEVENS, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI 20150015

Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, Fayette County Courthouse, 110 East Court Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Robert A. Brenner, 120 West Second Street, Suite 706, Dayton, Ohio 45402, for defendant- appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Harlan L. Stevens, appeals his conviction in the Fayette

County Court of Common Pleas. For the reasons that follow, we affirm the judgment of the

trial court.

{¶ 2} On January 9, 2015, the Fayette County Grand Jury returned a three-count

indictment charging Stevens with the following felonies: breaking and entering, theft, and Fayette CA2015-09-020

safecracking. Stevens entered pleas of not guilty to these charges and the case proceeded

to a jury trial on August 26, 2015, which concluded with a guilty verdict on all three charges.

The trial court held a sentencing hearing on August 28, 2015, where it merged the breaking

and entering and theft convictions as allied offenses of similar import. After the state elected

to proceed on the breaking and entering charge, the trial court imposed consecutive 12 and

18-month sentences for the breaking and entering and safecracking convictions, respectively.

The trial court further sentenced Stevens to consecutively serve the time remaining on his

postrelease control ("PRC") because he was on PRC at the time of committing the current

offenses.

{¶ 3} Stevens timely filed a notice of appeal on September 14, 2015. However, after

several extensions, Stevens failed to timely file a brief pursuant to the scheduling order. As a

result, we dismissed his appeal. Stevens subsequently filed an application to reopen his

case pursuant to App.R. 26(B) claiming ineffective assistance of appellate counsel due to this

failure. On September 9, 2016, we granted Stevens' application and reopened his case and

permitted him to raise three assignments of error and any other non-frivolous issues

discovered by his new appellate counsel.1

{¶ 4} The relevant evidence at trial established that a Wendy's restaurant located in

Jeffersonville at the intersection of State Route 41 and Interstate 71 was broken into between

10:00 P.M. on Sunday, September 21, 2014 and 5:00 A.M. on Monday, September 22, 2014.

Stevens gained entry by breaking the drive-thru window with a large landscaping rock. Once

inside the restaurant, he cut a hole on the side of the office safe with a grinder and removed

approximately $1,900. The general manager of the restaurant, Misty Wine, discovered the

1. We note each of Stevens' six assignments or error is in accordance with App.R. 26(B)(7), which states "[t]he parties shall address in their briefs the claim that representation by prior appellate counsel was deficient and that the applicant was prejudiced by that deficiency." -2- Fayette CA2015-09-020

broken window and safe when opening the restaurant on Monday morning. Wine called the

police and an investigation into the events from the prior night was initiated by the Fayette

County Sheriff's Office.

{¶ 5} During the investigation, the sheriff's office found a bloody bandage atop debris

surrounding the safe and two flashlights on the office floor. The sheriff's office then

submitted the bandage to the Ohio Bureau of Criminal Identification and Investigation

("BCI&I") for DNA testing. The DNA testing revealed that the blood on the bandage

contained Stevens' DNA. Subsequently, the sheriff's office discovered Stevens had been

questioned by Detective Michael Aiken of the Miamisburg Police Department in relation to a

breaking and entering that occurred at a Miamisburg Arby's restaurant. The Arby's case

similarly involved a breaking and entering through the drive-thru window. In the course of the

investigation of the Miamisburg case, Detective Aiken obtained a buccal swab from Stevens.

Stevens admitted to breaking into the Arby's restaurant with an accomplice and Miamisburg

P.D. recovered a bag of tools from Stevens' car parked near the Arby's restaurant that

included a grinder he intended to use to gain access to the contents of the store safe.

{¶ 6} The Fayette County Sheriff's Office requested Detective Aiken submit Stevens'

buccal swab to BCI&I for testing and comparison to the DNA obtained from the bandage

found at the Wendy's restaurant in Jeffersonville. The testing concluded that the DNA from

the buccal swab matched the DNA from the bandage. At trial, the state presented evidence

of Stevens' involvement in the Miamisburg Arby's breaking and entering pursuant to Evid.R.

404(B). The trial court provided two limiting instructions as to the purpose for which the jury

may consider this evidence. The first instruction came before the presentation of the

evidence during the state's case-in-chief and the second was included in the final jury

instructions. Based on the evidence presented, the jury convicted Stevens on all counts.

{¶ 7} Assignment of Error No. 1: -3- Fayette CA2015-09-020

{¶ 8} THE TRIAL COURT ERRED IN FAILING TO MERGE STEVENS'

CONVICTIONS FOR BREAKING AND ENTERING AND SAFECRACKING WHEN THOSE

OFFENSES HAD THE SAME IMPORT, AROSE FROM THE SAME CONDUCT, AND

CAUSED THE SAME HARM.

{¶ 9} Stevens first argues that the trial court erred by not merging his breaking and

entering and safecracking convictions because they are allied offenses of similar import.

Whether offenses constitute allied offenses of similar import subject to merger under R.C.

2941.25 is a question of law that appellate courts review de novo. Accord State v. Williams,

,

. Pursuant to R.C. 2941.25, a trial court shall

not impose multiple punishments for the same criminal conduct. The statute provides:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

"In determining whether offenses are allied offenses of similar import within the meaning of

R.C. 2941.25, courts must evaluate three separate factors – the conduct, the animus, and

the import." State v. Ruff,

,

, paragraph one of the

syllabus. If any of the following are true, a defendant's convictions do not merge and he or

she may be sentenced for multiple offenses: "(1) the conduct constitutes offenses of

dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3)

the conduct shows that the offenses were committed with separate animus." Id. at ¶ 13.

{¶ 10} "At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. Therefore, the -4- Fayette CA2015-09-020

analysis "may result in varying results for the same set of offenses in different cases." State

v. Johnson,

,

, abrogated in part by Ruff at ¶ 30-33.

In making this determination pursuant to R.C. 2941.25, a court must review the entire record.

State v. Washington,

,

. The burden lies with the

defendant to establish his entitlement to the protection provided by R.C. 2941.25 against

multiple punishments for a single criminal act. State v. Lewis, 12th Dist. Clermont No.

CA2008-10-045,

, ¶ 14.

{¶ 11} Stevens argues the trial court should have merged his convictions for breaking

and entering and safecracking because they are the result of the same conduct, arise from

the same animus, and caused the same harm. In support of his claim, Stevens asserts this

court has previously held that breaking and entering could merge with safecracking when the

animus of both crimes was the same. However, the authority cited does not directly support

this proposition and predates the proper inquiry, as discussed above, under Ruff. See State

v. Richardson, 12th Dist. Clermont No. CA2012-06-043,

(finding under

Johnson analysis that grand theft and safecracking should have been merged where the

defendant committed the offenses with the same conduct and with the same animus); but

see

(illustrating this court has found grand theft and safecracking do not merge where the

defendant completed the offenses with separate conduct and a separate animus), citing

State v. Crosby, 12th Dist. Nos. CA2010-10-081 and CA2011-02-013,

, ¶ 21.

As demonstrated by Richardson and Crosby, the results of the allied offenses analysis will

vary on a case-by-case basis dependent on the facts of a given case. Richardson at ¶ 26.

{¶ 12} Here, the trial court properly found that merger was not appropriate regarding

Stevens' convictions for breaking and entering and safecracking because they were of

dissimilar import and were committed separately. Two or more offenses of dissimilar import

exist "when the defendant's conduct constitutes offenses involving separate victims or if the -5- Fayette CA2015-09-020

harm that results from each offense is separate and identifiable." Ruff at ¶ 26. Pursuant to

R.C. 2911.13(A), one is guilty of breaking and entering if he or she "by force, stealth, or

deception, * * * trespass[es] in an unoccupied structure, with the purpose to commit therein

any theft offense * * *." As to the safecracking under R.C. 2911.31, provides that no person

shall "knowingly enter, force an entrance into, or tamper with any vault, safe, or strongbox"

with the purpose to commit an offense.

{¶ 13} In this case, the conduct and harm of damaging the drive-thru window was

separate from the conduct and harm of cutting a hole in the side of the safe. The breaking

and entering was complete after Stevens broke the drive-thru window and stepped inside the

restaurant with the intent to commit a theft offense. Sometime later, Stevens cut a hole in

the office safe and removed the cash. Thus, the initial offense of breaking and entering was

complete before the separate conduct supporting the safecracking offense was undertaken.

See, e.g., State v. Back, 12th Dist. Butler Nos. CA2015-03-037 and CA2015-03-038, 2015-

Ohio-4447, ¶ 12 (holding offenses were not allied offenses of similar import where individual

conduct supported the initial offense and separate conduct after completion of the initial

offense supported the second offense); see also State v. Lane, 12th Dist. Butler No.

CA2013-05-074,

("Because one offense was completed before the

other offense occurred, two offenses were committed separately for purposes of R.C.

2941.25(B) notwithstanding their proximity in time and that one was committed in order to

commit the other"). Therefore, the convictions are not allied offenses of similar import and

Stevens' first assignment of error is overruled.

{¶ 14} Assignment of Error No. 2:

{¶ 15} HARLAN STEVENS' CONVICTIONS ARE BASED ON INSUFFICIENT

EVIDENCE IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. -6- Fayette CA2015-09-020

{¶ 16} Assignment of Error No. 3:

{¶ 17} STEVENS' CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO

THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

{¶ 18} "The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different." State v. Thompkins,

(1997), superseded by constitutional amendment on other grounds as stated by State v.

Smith,

(1997). Sufficiency of the evidence is the legal standard

applied to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.

citing Black's Law Dictionary (6th

Ed. 1990) 1433. A conviction based on legally insufficient evidence constitutes a denial of

due process. Tibbs v. Florida,

,

(1982), citing Jackson v.

Virginia,

,

(1979). 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), superseded by constitutional amendment

on other grounds as stated by

. In evaluating the sufficiency of the evidence,

this court "defer[s] to the trier of fact on questions of credibility and the weight assigned to the

evidence." State v. Kirkland,

,

. "Although a court

of appeals may determine that a judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is against the manifest weight of the

evidence." State v. Robinson,

, 487 (1955), superseded by constitutional

amendment on other grounds as stated by

.

{¶ 19} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side -7- Fayette CA2015-09-020

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶ 14. In making this determination, a reviewing court looks at the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of the

witnesses, and determines whether in resolving the 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 ordered. State v. Morgan, 12th Dist. Butler Nos. CA2013-

08-146 and CA2013-08-147,

. "An appellate court will overturn a

conviction due to the manifest weight of the evidence only in extraordinary circumstances

when the evidence presented at trial weighs heavily in favor of acquittal." State v. Couch,

12th Dist. Butler No. CA2016-03-062,

.

{¶ 20} "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." (Emphasis added.)

; see also State v. Jones, 12th Dist. Butler

No. CA2012-03-049,

(stating that finding a conviction is supported by

the manifest weight of the evidence is also dispositive of the issue of sufficiency). Therefore,

"[b]ecause sufficiency is required to take a case to the jury, a finding that a conviction is

supported by the weight of the evidence must necessarily include a finding of sufficiency."

State v. Hart, 12th Dist. Brown No. CA2011-03-008,

, ¶ 43.

{¶ 21} Stevens argues the evidence supporting his convictions was insufficient to

establish that he actually entered the Wendy's restaurant or committed any of the crimes

therein, and that the amount of cash stolen was $1,000 or more. Further, Stevens argues

that his convictions were against the manifest weight of the evidence for the same reasons.

To support these arguments, Stevens claims the only evidence presented by the state that

he entered the restaurant was a bandage containing Stevens' DNA, which does not give rise

to the inferences required by the jury to convict. Further, Wine's testimony that roughly -8- Fayette CA2015-09-020

$1,900 was stolen from the safe was insufficient because Wine did not close the Wendy's

restaurant the night before the offenses occurred; therefore, she could not have known the

amount in the safe at the time.

{¶ 22} After a thorough review of the record, we find the state presented sufficient

evidence that would allow the jury to conclude beyond a reasonable doubt that Stevens

committed the offenses of breaking and entering, theft, and safecracking. Here, it cannot be

said that the jury clearly lost its way and created such a manifest miscarriage of justice

requiring a reversal of Stevens' convictions. The bloody bandage containing Stevens' DNA

found atop the safe debris in the office makes it highly probable that Stevens was inside the

store. Further, the evidence of his prior breaking and entering of another fast food restaurant

by breaking the drive-thru window to gain entry and having similar safe-cutting tools in his car

provided enough circumstantial evidence for the jury to reasonably conclude that Stevens

committed the offenses at the Wendy's restaurant. Finally, we find the state also presented

sufficient evidence that the amount stolen from the Wendy's restaurant was $1,000 or more.

Although Wine did not close the Wendy's restaurant the night before, she qualified her

testimony regarding the amount stolen by stating that her calculation of approximately $1,900

was based upon a review of deposits and receipts from the night in question.

{¶ 23} Therefore, Stevens' convictions for breaking and entering, theft, and

safecracking were supported by sufficient evidence and not against the weight of the

evidence. Accordingly, his second and third assignments of error are overruled.

{¶ 24} Assignment of Error No. 4:

{¶ 25} THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO USE

404(B) EVIDENCE AT TRIAL, AND THIS ERROR DEPRIVED STEVENS OF HIS RIGHT TO

A FAIR TRIAL PURSUANT TO THE UNITED STATES AND OHIO CONSTITUTIONS.

{¶ 26} "A trial court has broad discretion in the admission and the exclusion of -9- Fayette CA2015-09-020

evidence and unless it clearly abused its discretion and appellant is materially prejudiced

thereby, an appellate court should not disturb the decision of the trial court." State v. Martin,

12th Dist. Butler No. CA2007-01-022,

, citing State v. Finnerty,

(1989). An abuse of discretion is more than an error of law or judgment.

Rather, it suggests the "trial court's decision was unreasonable, arbitrary or unconscionable."

State v. Perkins, 12th Dist. Clinton No. CA2005-01-002,

. "A review

under the abuse-of-discretion standard is a deferential review." State v. Morris,

,

.

{¶ 27} "'Evidence that an accused committed a crime other than the one for which he

is on trial is not admissible when its sole purpose is to show the accused's propensity or

inclination to commit crime or that he acted in conformity with bad character.'" State v. Ward,

12th Dist. Clermont No. CA2013-07-059,

, quoting State v. Williams,

,

. However, the Ohio Supreme Court has promulgated

certain exceptions to the common law regarding the admission of other acts evidence.

Those exceptions are contained in Evid.R. 404(B), which states:

[e]vidence 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.

Furthermore, in order for evidence to be admissible pursuant to Evid.R. 404(B), there must

be substantial proof the alleged other acts were committed by the defendant and the

evidence must tend to prove one of the enumerated exceptions. State v. Lowe,

(1994); see also State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-

Ohio-150, ¶ 37. "Substantial proof" is not proof "beyond a reasonable doubt." State v.

Bromagen, 12th Dist. Clermont No. CA2005-09-087,

. Additionally,

- 10 - Fayette CA2015-09-020

R.C. 2945.59 provides that

[i]n any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

{¶ 28} The Ohio Supreme Court in Williams outlined a three-part test for courts to

apply when considering the admissibility of other acts evidence. Williams at ¶ 19-20. First,

the court should "consider whether the other acts evidence is relevant to making any fact that

is of consequence to the determination of the action more or less probable than it would be

without the evidence." Id. at ¶ 20, citing Evid.R. 401. Second, the court should determine if

"evidence of the other crimes, wrongs, or acts is presented to prove the character of the

accused in order to show activity in conformity therewith or whether the other acts evidence is

presented for a legitimate purpose, such as those stated in Evid.R. 404(B)." Id. Third, the

court should "consider whether the probative value of the other acts evidence is substantially

outweighed by the danger of unfair prejudice." Id., citing Evid.R. 403.

{¶ 29} In this case, the other acts evidence involved the breaking and entering of an

Arby's restaurant in Miamisburg through the drive-thru window. Detective Aiken of the

Miamisburg Police Department testified that Stevens admitted to breaking into the Arby's

restaurant during questioning. Additionally, a bag of tools was recovered from Stevens'

vehicle at the scene which included a grinder. Further, there was testimony that a similar

grinder was likely used to carry out the Wendy's safecracking. The trial court allowed the

presentation of this evidence to the jury for the limited purposes of showing identity and

modus operandi. The trial court provided the jury with a limiting instruction before the

- 11 - Fayette CA2015-09-020

presentation of the evidence and during final jury instructions. Nonetheless, Stevens argues

"the real reason" for permitting the jury to hear the evidence "was to improperly 'prove the

character of a person in order to show action in conformity therewith.'" Stevens argues the

record supports his claim because the state did not need help proving identity because of the

aforementioned DNA evidence.

{¶ 30} After a thorough review of the record, we find there is substantial proof that the

alleged other acts were committed by Stevens based upon the testimony of Detective Aiken.

For the reasons that follow, we further find the trial court properly permitted the presentation

of the other acts evidence to show identity and modus operandi under the three-part test in

Williams.

{¶ 31} First, the evidence of Stevens' prior breaking and entering of the Arby's

restaurant by breaking through the drive-thru window while in possession of similar safe-

cutting tools in his car provided circumstantial evidence for the jury to reasonably conclude

that Stevens committed the offenses by undertaking a specific and unique method of action.

Next, contrary to Stevens' claim otherwise, this evidence was not admitted to demonstrate

Stevens' character in order to show that he acted in conformity therewith. Rather, as the two

limiting instructions clearly establish, the trial court admitted the evidence for the purposes of

identity and modus operandi. Specifically, the trial court admonished the jury that such

evidence can only be considered for such purposes, and "cannot be used by [the jury] and

it's not being offered by the State to prove character. In other words[,] that someone is a bad

person and because they are a bad person they must have done this crime. So you

absolutely cannot consider it for that purpose."

{¶ 32} Finally, the evidence is probative of the fact that Stevens employed the same

technique and tools to break into another fast food restaurant, which substantially outweighs

any danger of unfair prejudice. This is particularly true where the trial court provided two - 12 - Fayette CA2015-09-020

specific limiting instructions to the jury describing the exact purposes for which the jury may

consider the evidence. Accord State v. Ward, 12th Dist. Clermont No. CA2013-07-059,

(finding the trial court minimalized any potential prejudice by providing a

limiting instruction before testimony and again before submitting the case to the jury); see

also State v. Jones,

,

(stating juries are presumed

to follow the instructions given to them by the trial court). Moreover, the record does not

reflect any indication that the jury did not follow the trial court's instructions.

{¶ 33} Therefore, the trial court did not err by admitting other acts evidence pursuant

to Evid.R. 404(B). Accordingly, Stevens' fourth assignment of error is overruled.

{¶ 34} Assignment of Error No. 5:

{¶ 35} THE TRIAL COURT ERRED BY AGREEING TO GIVE A COMPLICITY

INSTRUCTION AFTER THE DEFENSE CLOSING ARGUMENT AND OVER THE

OBJECTION OF THE DEFENSE AND THIS ERROR DEPRIVED STEVENS OF HIS RIGHT

TO A FAIR TRIAL PURSUANT TO THE UNITED STATES AND OHIO CONSTITUTIONS.

{¶ 36} Stevens argues that the trial court improperly gave the jury a complicity

instruction because the state did not present any evidence that more than one person

committed the crimes with which Stevens was charged.

{¶ 37} The complicity statute, R.C. 2923.03, states, in pertinent part:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;

***

(F) Whoever violates this section is guilty of complicity in the - 13 - Fayette CA2015-09-020

commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense.

A jury instruction on complicity is proper if the evidence presented at trial could reasonably be

found to support a defendant's guilt pursuant to R.C. 2923.03. State v. Benson, 12th Dist.

Butler No. CA2004-10-254,

. "In reviewing the record to ascertain the

presence of sufficient evidence to support the giving of a proposed jury instruction, an

appellate court should determine whether the record contains evidence from which

reasonable minds might reach the conclusion sought by the instruction." State v. Davis, 12th

Dist. Madison No. CA2015-05-015,

, ¶ 35, citing State v. Risner,

(3d Dist. 1997). We review a trial court's determination whether sufficient

facts exist to support a jury instruction for an abuse of discretion. State v. Evegan, 12th Dist.

Warren No. CA97-08-091,

, *2 (Aug. 2, 1999).

{¶ 38} In this case, there was sufficient evidence presented at trial to warrant a jury

instruction on complicity. Lieutenant Ryan McFarland of the Fayette County Sheriff's Office

testified that there might have been two suspects. Lieutenant McFarland stated two

flashlights were found near the safe in the office. Further, that despite the recovery of only

Stevens' DNA from the scene, it does not preclude the possibility that other persons may

have been involved. Furthermore, as discussed above, the other acts evidence regarding

the earlier Arby's restaurant demonstrates that Stevens' modus operandi for carrying out

these offenses may include an accomplice. While this evidence supporting the jury

instruction is not overwhelming, facts do exist to support a complicity instruction. Therefore,

the trial court did not abuse its discretion in charging the jury with complicity.

{¶ 39} Accordingly, Stevens' fifth assignment of error is overruled.

{¶ 40} Assignment of Error No. 6:

- 14 - Fayette CA2015-09-020

{¶ 41} THE TRIAL COURT ERRED IN ADMITTING THE DNA COMPARISON,

BECAUSE NO TESTIMONY OR RECORDS ESTABLISHED WHETHER DNA WAS

COLLECTED PROPERLY.

{¶ 42} Stevens contends that the DNA evidence in this case was not authenticated

due to the state's failure to establish a proper chain of custody for the buccal swab; thereby,

providing an insufficient foundation to admit the BCI&I comparison lab report ("BCI&I report")

into evidence. Specifically, Stevens argues that Detective Aiken's testimony is insufficient to

establish the chain of custody because he stated, "I, I believe I did yes[,]" in response to a

question if he personally took the buccal swab. Stevens further contends that Detective

Aiken "did not explain how the sample was taken, what protocols the officers follow when

taking such samples, and what measures ensured that the sample was not contaminated or

even confused for a different sample."

{¶ 43} Evid.R. 901 provides "[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims." "The 'chain of custody' is part of the

authentication and identification mandate set forth in Evid.R. 901 for the admission of

evidence." In re Swader, 12th Dist. Warren No. CA2000-04-036,

, *7 (Feb.

5, 2001), quoting State v. Brown,

(3d Dist. 1995). The state bears

the burden of establishing a proper chain of custody. In re Swader at *7. However, this duty

is not absolute and the state need only establish that it is reasonably certain that substitution,

alteration, or tampering did not occur.

The chain of custody affects the credibility of the

evidence, not its admissibility. State v. Gross,

,

.

{¶ 44} In this case, Stevens did not object to any testimony regarding the DNA

evidence at the time it was offered. Stevens' failure to object to the testimony constitutes a

waiver of any error in its admission and may only be reviewed for plain error. Generally, the - 15 - Fayette CA2015-09-020

decision to admit or exclude relevant evidence lies within the sound discretion of the trial

court. State v. Sage,

(1987), paragraph two of the syllabus. If an

evidentiary issue is not objected to during trial, we review it for plain error only. State v.

Rivera-Carillo, 12th Dist. Butler No. CA2001-03-054,

, *16 (Mar. 11, 2002).

Plain error does not exist unless, but for some "obvious" error committed by the trial court,

the outcome of the trial would have been different. State v. Johnson,

,

, ¶ 31. Notice of plain error "'is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.'" State v.

Haney, 12th Dist. Clermont No. CA2005-07-068,

, quoting State v.

Long,

(1978), paragraph three of the syllabus.

{¶ 45} With respect to the oral testimony during trial regarding the DNA evidence, a

review of the record reveals such evidence was properly admitted by the trial court because

the state sufficiently established to a reasonable certainty that no substitution, alteration, or

tampering occurred. Detective Aiken testified he took Stevens' buccal swab at the

conclusion of Stevens' questioning regarding the Arby's break-in. Detective Aiken further

explained that a buccal swab is performed by taking a "Q-Tip" about four to six inches long

and swabbing the inside of a person's cheek, which is then placed into a small cardboard

box. At the request of the Fayette County Sheriff's Office, the buccal swab was then sent to

BCI&I for a DNA comparison. Timothy Augsback, a forensic scientist for BCI&I, further

testified to the extensive procedures regularly undertaken to conduct a DNA comparison.

Augsback testified that he conducted these procedures with respect to the DNA obtained

from Stevens' buccal swab and the bandage recovered from the Wendy's restaurant, which

resulted in a DNA match. Therefore, the trial court did not commit plain error by permitting

the oral testimony regarding the DNA evidence.

{¶ 46} The results of the DNA comparison are contained in the BCI&I report, which - 16 - Fayette CA2015-09-020

was admitted at the end of the state's case-in-chief over Stevens' objection. Stevens argued

the BCI&I report was irrelevant and that there was insufficient foundation laid for its

admission because there was no testimony as to who specifically took the buccal swab. We

review the trial court's decision to admit this evidence for an abuse of discretion. State v.

Russell, 12th Dist. Butler No. CA2012-03-066,

.

{¶ 47} Here, the trial court did not abuse its discretion by admitting the BCI&I report.

Contrary to Stevens' assertion otherwise, Detective Aiken testified that he took Stevens'

buccal swab, which was later sent to BCI&I for DNA testing. As noted above, Detective

Aiken further testified regarding the proper procedures for taking a buccal swab. Additionally,

Augsback testified as to the procedures he performs as a forensic scientist when performing

DNA comparisons and that he has performed "hundreds or thousands" of them. Augsback

testified that he undertook these procedures with respect to the bandage and the buccal

swab comparison, which resulted in a DNA match. This result was reduced to writing in the

BCI&I report. Thus, the BCI&I report is relevant because it makes it highly probable that it is

Stevens' DNA on the bandage, which was located inside the Wendy's restaurant. Moreover,

as analyzed above, the state sufficiently established to a reasonable certainty that the DNA

evidence was free of substitution, alteration, or tampering. This established chain of custody

for the DNA evidence described in the report coupled with Augsback's testimony

authenticated the report provided a sufficient foundation for the report's admission.

Accordingly, the trial court did not abuse its discretion.

{¶ 48} Nonetheless, even if we were to accept Stevens' argument that the BCI&I

report was improperly admitted into evidence, any alleged error would be harmless. An

accused has "a constitutional guarantee to a trial free from prejudicial error, not necessarily

one free of all error." State v. Swartsell, 12th Dist. Butler No. CA2002-06-151, 2003-Ohio-

4450, ¶ 31. Pursuant to Crim.R. 52(A), "any error, defect, irregularity, or variance which does - 17 - Fayette CA2015-09-020

not affect [the accused's] substantial rights shall be disregarded" as harmless error. See also

State v. MaCausland, 12th Dist. Butler No. CA2007-10-254,

. A finding

of harmless error is appropriate where the admission of the evidence was merely cumulative

to evidence already presented at trial because it does not result in any prejudice. See State

v. Tucker, 12th Dist. Butler No. CA2010-10-263,

, ¶ 17-19.

{¶ 49} In this case, any error in the BCI&I report's admission would have been

harmless error because the information contained within the report was simply cumulative of

the evidence presented through oral testimony. The BCI&I report detailed the procedures

undertaken by Augsback to conduct the DNA comparison and the results therefrom. During

the state's case-in-chief, Augsback provided direct testimony of this information in its entirety

without objection. Therefore, due to the cumulative nature of the BCI&I report, we find

Stevens cannot demonstrate any resulting prejudice from its admission

{¶ 50} Accordingly, Stevens' sixth assignment of error is overruled.

{¶ 51} Finally, Stevens contends that his original appellate counsel was deficient by

failing to timely file a brief, which resulted in prejudice because his appeal was dismissed.

We previously found Stevens' original appellate counsel's failure to file a brief raised a

genuine issue of ineffective assistance of appellate counsel pursuant to App.R. 26(B).

Therefore, we granted Stevens' application to reopen his case on three assignments of error

and any other nonfrivolous issues discovered by his new appellate counsel. As a result,

Stevens was afforded a full opportunity to argue his appeal. In so doing, Stevens raised six

assignments of error, which we analyzed above and overruled. Therefore, Stevens has not

been prejudiced by his original appellate counsel's performance.

{¶ 52} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.

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