[Cite as State v. Baum,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27190 : v. : Trial Court Case No. 2016-CR-1458 : ERIC BAUM : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 17th day of March, 2017.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

THOMAS J. MANNING, Atty. Reg. No. 0059759, P.O. Box 751484, Dayton, Ohio 45475 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} In this case, Defendant-Appellant, Eric Baum, appeals from his convictions

and sentences for Criminal Trespass, a fourth-degree misdemeanor, and Possession of

Criminal Tools, a first-degree misdemeanor. Baum was originally charged with Burglary,

a third-degree felony, and Possession of Criminal Tools, a fifth-degree felony. The case

was tried before a jury, which found Baum guilty of the lesser-included offense of Criminal

Trespass. The jury also found Baum guilty of Possession of Criminal Tools, but declined

to find that he possessed criminal tools with the intent to commit burglary. Accordingly,

the trial court converted the charge to a first-degree misdemeanor, pursuant to R.C.

2923.24(C). The court then sentenced Baum to 30 days in jail for Criminal Trespass and

180 days in jail for Possession of Criminal Tools, and ordered that the sentences be

served concurrently, for a total of 180 days in jail.

{¶ 2} Baum’s counsel submitted a brief pursuant to Anders v. California,

,

,

(1967), asserting that he could find no trial court error

that was prejudicial to Baum’s rights that could be argued on appeal. We notified Baum

of his counsel’s submission of an Anders brief, and of his ability to file additional

assignments of error within 60 days. Because Baum has not filed any new assignments

of error, this matter is ready for resolution.

I. Facts and Course of Proceedings

{¶ 3} According to the testimony at trial, Baum was found inside a residence on

Perrine Street in Dayton, Ohio, at around 7:00 p.m. on May 9, 2016. Officers had been

dispatched to the scene on a call about someone entering a vacant residence. No one -3-

was living in the house at the time, but the owner, Mark Parker, lived in the area and was

renovating the property. The prior owner had died, and Parker had purchased the

property in March 2015, more than a year before the police were called.

{¶ 4} At the time of the break-in, the utilities were on, but the water had been turned

off, and the bottom floor of the house was filled with construction materials. The arresting

officer, John Griffin, also indicated that the second floor did not look as if it were capable

of being lived in. When Griffin arrived, he saw a board propped up against a rear window.

Griffin moved the board and entered the house. Eventually, Baum was found upstairs,

in the attic, on top of a shed-like structure that housed a furnace. There were also three

raccoons in the attic.

{¶ 5} When Baum was apprehended, he was wearing gloves, even though it was

a nice May day. Baum also had a flashlight, a small folding knife inside his waistband,

and a key chain with some type of multi-tool, almost like a Swiss Army knife.

{¶ 6} At trial, Baum testified in his own defense. He said that he lived in the area,

near the house on Perrine. Baum saw Parker doing exterior painting on the Perrine

house in 2015, but said that, to his knowledge, nothing had been done on the interior or

exterior of the property since May 2015. Baum indicated that from November 2015 to

April 2016, his own property had been burglarized dozens, perhaps “hundreds” of times,

and that he went inside the Perrine Street house to see if any of his property was in there.

He claimed to have previously seen some of his property on the outside of the Perrine

home, specifically, his children’s Halloween costumes. Baum admitted that he was

trespassing in the house and did not have permission to be there. He denied that he

possessed any of the items on his person with criminal purpose. Baum’s explanation for -4-

the gloves was that he had ringworm and wore the gloves almost constantly. He also

carried a flashlight because the power had been turned off at his own home, and he

needed the light to see inside his house. In addition, Baum stated that he collected

pocketknives.

{¶ 7} As was noted, Baum was charged with Burglary, a third-degree felony, and

Possession of Criminal Tools, a fifth-degree felony. After the close of evidence, the trial

court instructed the jury on the lesser-included offense of Criminal Trespass. When the

jury returned its verdict, it had found Baum guilty of Criminal Trespass, and Possession

of Criminal Tools. However, the felony intent part of the Criminal Tools offense was left

blank. As a result, the trial found Baum guilty of Criminal Trespass and the misdemeanor

crime of Possession of Criminal Tools, and sentenced Baum as noted above.

II. Potential Assignments of Error

{¶ 8} Baum’s counsel has identified four potential issues that could arguably

support an appeal. These include: (1) whether the conviction is against the manifest

weight of the evidence; (2) whether the trial court erred in overruling Baum’s motion for

acquittal under Crim.R. 29; (3) whether Baum’s counsel was ineffective by failing to

secure a time waiver to conduct additional discovery, including obtaining a transcript of

the preliminary hearing in Dayton Municipal Court, and failing to file a request that Baum’s

competency be evaluated: and (4) whether the trial court erred in failing to grant a trial

continuance or in failure to exclude a DVD of a cruiser camera after technical issues

prevented Baum and his counsel from viewing the DVD in its entirety.

{¶ 9} “We are charged by Anders to determine whether any issues involving -5-

potentially reversible error that are raised by appellate counsel or by a defendant in his

pro se brief are ‘wholly frivolous.’ * * * If we find that any issue presented or which an

independent analysis reveals is not wholly frivolous, we must appoint different appellate

counsel to represent the defendant.” State v. Marbury, 2d Dist. Montgomery No. 19226,

, ¶ 7, citing Anders,

,

,

.

(Other citation omitted.)

{¶ 10} “Anders equates a frivolous appeal with one that presents issues lacking in

arguable merit. An issue does not lack arguable merit merely because the prosecution

can be expected to present a strong argument in reply, or because it is uncertain whether

a defendant will ultimately prevail on that issue on appeal. An issue lacks arguable merit

if, on the facts and law involved, no responsible contention can be made that it offers a

basis for reversal.” (Citation omitted.) Id. at ¶ 8.

A. Manifest Weight and Sufficiency of the Evidence

{¶ 11} As was indicated, Baum’s first and second potential assignments of error

alleged that his convictions were based on insufficient evidence and were against the

manifest weight of the evidence.

{¶ 12} “A sufficiency-of-the-evidence argument challenges whether the state has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or to sustain the verdict as a matter of law.” State v. Cherry,

,

,

(2d Dist.), citing State v. Thompkins,

,

(1997). “The proper test to apply to the inquiry is the

one set forth in paragraph two of the syllabus of State v. Jenks (1991),

, -6-

: ‘An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction 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.’ ”

.

{¶ 13} In contrast, “[w]hen a conviction is challenged on appeal as being against

the weight of the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, consider witness credibility, 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 ordered.’ ” State v. Hill, 2d Dist. Montgomery No. 25172,

,

quoting

. “A judgment should be reversed as being against the

manifest weight of the evidence ‘only in the exceptional case in which the evidence

weighs heavily against the conviction.’ ”

quoting State v. Martin,

,

(1st Dist. 1983).

{¶ 14} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th Dist. Franklin No.

10AP-881,

, ¶ 11. Consequently, “a determination that a conviction is

supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” -7-

(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725,

.

{¶ 15} At trial, Baum admitted that he had trespassed on the property without

permission, so there can be no dispute that the guilty verdict for Criminal Trespass was

supported by the weight of the evidence. Regarding Possession of Criminal Tools, R.C.

2923.24(A) provides that “[n]o person shall possess or have under the person’s

possession any substance, device, instrument or article, with purpose to use it criminally.”

However, this crime “is not limited to possession with the purpose to commit theft; rather,

it is broad enough to include any criminal purpose as the requisite intent.” State v. Talley,

, 480 N.Ed.2d 439 (1985).

{¶ 16} Because the term “ ‘criminally’ is not defined in the statute, * * * it must be

given its plain and ordinary meaning.” (Citations omitted.) State v. Chappell,

,

,

, ¶ 17. In Chappell, the court further stated

that:

The term “criminally” has varying definitions, including (1) according

to criminal law, (2) in a criminal manner, i.e., in violation of law, and (3)

reprehensively, disgracefully, or shamefully. Webster's Third New

International Dictionary (1986) 537. The most relevant of the three

definitions in today's case are “according to criminal law” and “in a criminal

manner, i.e., in violation of law.” When either definition of “criminally” is

used in the context of possessing criminal tools under R.C. 2923.24(A), the

statutory language is susceptible of only one interpretation: the ordinary

meaning of “criminally” is not limited to violations of Ohio law and plainly -8-

encompasses violations of any law, including offenses defined under Ohio

law and federal law.

(Emphasis sic.) Id. at ¶ 18.

{¶ 17} Chappell involved a charge of Possession of Criminal Tools, in which the

State advised in a bill of particulars that “it intended to introduce evidence that the

underlying felony was Chappell's purpose to violate federal copyright law under Section

506, Title 17, U.S. Code.” Id. at ¶ 6. The defendant argued that he could not be

prosecuted for violating R.C. 2923.24 in connection with offenses unless they were

violations listed in the Ohio Revised Code. Id. at ¶ 15. After reciting the ordinary

meaning of “criminally,” the Supreme Court concluded that R.C. 2901.04(D) expanded

the definition of “criminal offenses in certain circumstances,” and that the court could not

agree with the defendant’s narrow interpretation that R.C. 2923.24 should be limited to

offenses under Ohio law. Id. at ¶ 15 and 25.

{¶ 18} In this context, the court commented that “[t]he state is not prosecuting [the

defendant] for violating federal copyright law, nor is the state seeking to have a penalty

imposed against [him] for violating federal copyright law. And the state is not required to

prove that [the defendant] violated federal copyright law in order to obtain a conviction

against him for possessing criminal tools. Rather, the state need only show that his

purpose was to violate the law.” Id. at ¶ 22.

{¶ 19} There is no question that Baum intended to violate the law with respect to

Criminal Trespass. During his testimony, Baum admitted that he was inside the Perrine

Street property on May 9, 2016, that he went in through a back window, that he did not

have permission to be there, that he was in the property for 15-20 minutes, and that he -9-

ran up to the attic to hide from the police Transcript of Proceedings, Vol. II, pp. 359,

378-379, and 380.

{¶ 20} Based on Baum's own testimony, he knowingly entered the property without

privilege, and this would have provided the required predicate for a conviction of

Possession of Criminal Tools. As a result, any arguments regarding sufficiency of the

evidence or manifest weight of the evidence would be frivolous.

B. Alleged Ineffectiveness of Trial Counsel

{¶ 21} Baum’s third potential assignment of error alleges that trial counsel was

ineffective on two grounds: (1) by failing to secure a time waiver to conduct additional

discovery, including obtaining a transcript of the preliminary hearing in Dayton Municipal

Court; and (2) by failing to file a request that Baum’s competency be evaluated.

{¶ 22} “In order to prevail on a claim of ineffective assistance of counsel, the

defendant must show both deficient performance and resulting prejudice.” State v.

Matthews,

,

,

(2d Dist.), citing

Strickland v. Washington,

,

,

(1984). “Trial

counsel is entitled to a strong presumption that his conduct falls within the wide range of

effective assistance, and to show deficiency, the defendant must demonstrate that

counsel's representation fell below an objective standard of reasonableness.”

{¶ 23} “The adequacy of counsel's performance must be viewed in light of all of

the circumstances surrounding the trial court proceedings. * * * Hindsight may not be

allowed to distort the assessment of what was reasonable in light of counsel's perspective

at the time.” (Citations omitted.) State v. Jackson, 2d Dist. Champaign No. 2004-CA- -10-

24,

.

{¶ 24} “Even assuming that counsel's performance was ineffective, the defendant

must still show that the error had an effect on the judgment. * * * Reversal is warranted

only where the defendant demonstrates that there is a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different.” Id. at ¶ 30,

citing State v. Bradley,

,

(1989).

{¶ 25} Regarding the first alleged point of ineffective assistance, the record reveals

that the preliminary hearing was discussed at p. 168 of the transcript, during a sidebar

conference concerning whether defense counsel could question Parker about a

statement he had made at the preliminary hearing. The statement was that Parker had

last been at the Perrine St. property three days prior to the burglary. This contrasted

with Parker’s trial testimony that he had been at the property the day before the break-in.

However, defense counsel did not have a transcript of the preliminary hearing; she was

referring to her recollection of what she had asked Parker at the preliminary hearing.

Transcript of Proceedings, Vol. I, p. 168. Based on a finding of a “good faith” basis for

inquiring, the trial court allowed defense counsel to ask Parker about this statement, but

indicated that if Parker said he did not recall, that would be the end of the inquiry. Id. at

p. 170.

{¶ 26} Defense counsel then asked Parker about his testimony at the preliminary

hearing. Parker said he believed he had said then that he was at the property the day

before the break-in; he did not recall saying he had last been there three days before.

Id. at pp. 171-172. However, this testimony was irrelevant and could not possibly have

affected the outcome of the trial. The testimony was directed to the State’s attempt to -11-

prove that the property was “occupied,” for purposes of the Burglary charge. However,

the jury did not find Baum guilty of that charge; the jury found him guilty of Criminal

Trespass, which did not require a finding that the property was occupied. Instead,

Criminal Trespass required a finding only that Baum entered the property without

permission – which he admitted.

{¶ 27} As part of the ineffectiveness of counsel claim, Baum also raises a potential

issue about further discovery trial counsel should have done. At pp. 274-275 of the

transcript, defense counsel indicated that the case had been tried quickly due to speedy

trial concerns and her belief that Baum did not deserve to be in jail any longer. Counsel

further stated that when she was able to speak that day with witnesses who were next-

door neighbors of the Perrine Street property, she was told about another potential

witness who lived on the other side of the property. According to defense counsel, “this

individual would only be relevant for basically one statement. Eric – Mark Parker

allegedly told this guy that he uses 105 Perrine to store materials in.” Id. at p. 277. After

discussion, the court indicated that the statement would not be admissible on rebuttal

because it had not been first presented to Parker, and he did not deny it. Id. at p. 278.

Defense counsel then decided not to call the witness. Id. at p. 279.

{¶ 28} As with the evidence from the preliminary hearing, this testimony would be

irrelevant for purposes of appeal, because it was intended to dispute the State’s

contention that the property was occupied for purposes of the Burglary charge. This

argument, therefore, would be frivolous.

{¶ 29} The second claim of alleged ineffective assistance of counsel pertains to

whether trial counsel should have filed a request to evaluate Baum’s competency based -12-

on information trial counsel received from witnesses who knew Baum. This issue was

discussed at pp. 253-257 of the trial transcript.

{¶ 30} “It has long been recognized that ‘a person [who] lacks the capacity to

understand the nature and object of the proceedings against him, to consult with counsel,

and to assist in preparing his defense may not be subjected to a trial.’ ” State v. Smith,

,

(2000), quoting Drope v. Missouri,

,

,

(1975). “Fundamental principles of due process

require that a criminal defendant who is legally incompetent shall not be subjected to trial.”

State v. Berry,

,

(1995), citing Pate v. Robinson,

,

,

(1966). (Other citation omitted.)

{¶ 31} This issue is governed in Ohio by R.C. 2945.37(B), which provides that:

In a criminal action in a court of common pleas, a county court, or a

municipal court, the court, prosecutor, or defense may raise the issue of the

defendant's competence to stand trial. If the issue is raised before the trial

has commenced, the court shall hold a hearing on the issue as provided in

this section. If the issue is raised after the trial has commenced, the court

shall hold a hearing on the issue only for good cause shown or on the court's

own motion.

{¶ 32} R.C. 2945.37(C)-(E) provide procedures for holding such a hearing if

determined to be needed. R.C. 2945.37(G) further states that:

A defendant is presumed to be competent to stand trial. If, after a hearing,

the court finds by a preponderance of the evidence that, because of the

defendant's present mental condition, the defendant is incapable of -13-

understanding the nature and objective of the proceedings against the

defendant or of assisting in the defendant's defense, the court shall find the

defendant incompetent to stand trial and shall enter an order authorized by

section 2945.38 of the Revised Code.

{¶ 33} In State v. Bock,

,

(1986), the Supreme

Court of Ohio stated that:

The failure to hold a competency hearing is harmless error where the

defendant proceeds to participate in the trial, offers his own testimony in

defense and is subject to cross-examination, and the record fails to reveal

sufficient indicia of incompetency.

at paragraph one of the syllabus.

{¶ 34} Subsequently, in State v. Thomas,

,

,

, the court stressed that:

[T]he decision whether to hold a competency hearing once trial has begun

is in the court's discretion. State v. Rahman (1986),

, 23 OBR 315,

. The right to a hearing rises to the level

of a constitutional guarantee when the record contains sufficient “indicia of

incompetency” to necessitate inquiry to ensure the defendant's right to a fair

trial. State v. Were,

,

, paragraph two of

the syllabus; State v. Berry,

,

.

Objective indications such as medical reports, specific references by

defense counsel to irrational behavior, or the defendant's demeanor during

trial are all relevant in determining whether good cause was shown after the -14-

trial had begun. State v. Chapin (1981),

,

,

, paragraph one of the syllabus.

Id. at ¶ 37.

{¶ 35} After reviewing the record, we find the competency argument frivolous.

During the trial, defense counsel indicated that she had subpoenaed two people who lived

next door to 105 Perrine Street because her investigator had not been able to reach them

prior to trial. In speaking with these witnesses during trial, counsel had just learned that

they had seen a “downhill slide, mental-health wise” with the defendant. Transcript of

Proceedings, Vol. I, p. 253. Counsel further stated that this was something she had

observed in working with Baum over the last week, but had never directly addressed with

him. Id. Counsel then said: “ * * * competency was never an issue for me. He is

articulate, very well-spoken, smart. He’s a business owner. You know, so I – he’s

definitely competent to testify.” Id. at p. 254.

{¶ 36} Baum’s counsel then explained that she wanted Baum to have the

opportunity to know that there were options for trial in terms of defense tactics, one being

a not guilty by reason of insanity (“NGRI”) defense. Id. Counsel also stated that Baum

had said he did not want to pursue such a defense, and they would waive the NGRI

defense. Id. At this point, the court questioned Baum about the NGRI defense, and the

following exchange occurred:

THE COURT: The only point –

***

THE COURT: – we’re trying to make clear is whether or not that

would be a defense that you would want to present to the jury, a defense of -15-

not guilty by reason of insanity.

THE DEFENDANT: I hadn’t actually had any – anything in

particular, * * * presented to me as – as, * * * a – cause for, * * * doubt or a

cause for, * * * you know, reason –

***

THE DEFENDANT: – for that. Yeah, if there was something * * *

in particular that * * * you know, something I’ve said, something –

***

THE DEFENDANT: – I’d suggested, maybe something that – that

I’d said that * * * misrepresented what I was actually, you know, intended to

* * * convey, you know, something that was going to – if I come off wrong,

you know, I – I could have had * * * an opportunity to * * * either one, rectify

the miscommunication or * * * I * * * could’ve * * * used that example as,

perhaps, something that was outside of, my * * * awareness up to that point,

and maybe something a mental health professional would want to evaluate.

But I’ve had mental health evaluations – * * * I think, two – in the last

eight years. And, * * * I haven’t had any diagnoses of * * * any sort, * * *

neuroses, psychoses disorder, anything. So –

***

THE DEFENDANT: – I just personally * * * there were things, I think

that we didn’t want to get into for our purposes here –

***

THE DEFENDANT: – that * * * would’ve been rather * * * admittedly -16-

convoluted.

***

“Complex,” rather, would be a better word.

***

THE DEFENDANT: And so we won’t get into that. And I, * * *

understand that. But that’s not something that’s gonna happen, so –

THE COURT: Okay.

THE DEFENDANT: – I appreciate the concern.

THE COURT: Okay. Good. I just wanted to make a record of

that. We’ve done that.

Transcript of Proceedings, Vol., pp. 256-257.

{¶ 37} As an initial matter, there would have been no reason to file a request for a

hearing, because trial counsel did not believe Baum was incompetent. When witnesses

expressed some concern, counsel properly brought the matter to the attention of Baum

and the trial court, even though counsel felt Baum was competent.

{¶ 38} Furthermore, Baum affirmatively rejected the NGRI defense, and there was

also no indicia at trial of incompetency. “Incompetency is defined in Ohio as the

defendant's inability to understand ‘ * * * the nature and objective of the proceedings

against him or of presently assisting in his defense.’ R.C. 2945.37(A). Incompetency

must not be equated with mere mental or emotional instability or even with outright

insanity. A defendant may be emotionally disturbed or even psychotic and still be

capable of understanding the charges against him and of assisting his counsel.” Bock,

,

. -17-

{¶ 39} As counsel noted, Baum was quite articulate. Baum also stated that he

had never had any diagnoses of mental problems. Thus, there would have been no

reason for the trial court to hold a competency hearing.

{¶ 40} Accordingly, we find no non-frivolous issues regarding whether trial counsel

rendered ineffective assistance.

C. Issues Regarding Cruise Camera Video

{¶ 41} Baum’s final potential assignment of error raises the issue of whether the

trial court erred by failing to either grant a continuance or exclude DVD video taken from

a cruiser camera. According to Baum, the trial court should have allowed him to make

an informed decision about whether he should take the stand in his own defense after

technical issues prevented him and his trial counsel from viewing the video in its entirety.

Consideration of this issue occurred at pp. 291-301 and 326-341 of the Transcript of

Proceedings, Vol. II.

{¶ 42} After reviewing the record, we find this potential assignment of error

frivolous. As an initial point, Baum somewhat mischaracterizes what occurred. It is true

that trial counsel and Baum were unable to view the video prior to trial due to technical

issues. However, when this issue was raised with the trial court, the court stated that

Baum would be permitted to view the video in its entirety, if he chose to do so, before

getting on the stand.

at pp. 295 and 299. The court also indicated it would give

Baum time, while another witness testified, to decide if he wanted to testify, and if so,

whether he wished to view the video in its entirety. Id. at pp. 300-301.

{¶ 43} After the witnesses finished testifying, the court asked Baum if he wished to -18-

testify, and Baum said, “Oh, absolutely.” Id. at p. 326. At that point, the court discussed

with Baum whether his decision to testify was voluntary, and Baum was then allowed to

watch as much of the video as he wished. Id. at pp. 327-342.

{¶ 44} As a final matter, the State did not play the video to the jury during Baum’s

cross-examination, even though Baum told the police three different stories on the video

about why he had been in the Perrine Street house. Id. at pp. 296-297. Baum was also

acquitted of Burglary, and, as has been noted, admitted he was in the house without

permission. As a result, any argument pertaining to the video is irrelevant.

III. Anders Review

{¶ 45} We have conducted a thorough and complete examination of all the

proceedings to decide if this appeal is wholly frivolous. Penson v. Ohio,

,

,

(1988), citing Anders,

,

,

. After reviewing the entire record, including the filings, the written transcript

of the trial and sentencing hearing, the Presentence Investigation Report, and the

sentencing entry, we cannot find any non-frivolous issues for review. Accordingly, the

judgment of the trial court is affirmed.

.............

HALL, P.J. and DONOVAN, J., concur. -19-

Copies mailed to:

Mathias H. Heck, Jr. Andrew T. French Thomas J. Manning Eric Baum Hon. Dennis J. Langer