[Cite as State v. Parra,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-15-1290

Appellee Trial Court No. CR0201402519

v.

Shawn M. Parra DECISION AND JUDGMENT

Appellant Decided: July 7, 2017

*****

Julia R. Bates, Lucas County Prosecuting Attorney, Frank H. Spryszak and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas that found appellant Shawn Parra guilty of one count of theft in office. For the

following reasons, the judgment of the trial court is affirmed. {¶ 2} The undisputed facts relevant to the issues raised on appeal are as follows.

During the early morning hours of June 2, 2014, appellant, who was then a Toledo Police

officer, and several other officers responded to a call to investigate possible vandalism at

the vacant Clarion Hotel in Toledo, Ohio. During a search of the building, Officer

Nathaniel Sahdala found a cell phone on the floor near what appeared to be a point of

illegal entry. Sahdala put the phone in his pocket and continued the building search.

When the search was complete, the seven officers involved discussed what to do with the

phone, which they discovered was password locked. Although witness recollections vary

as to whether appellant volunteered to take the phone or was asked to do it, it is

undisputed that appellant left the scene with the phone in his possession.

{¶ 3} On September 24, 2014, appellant was indicted for theft in office, a felony

of the fifth degree, in violation of R.C. 2921.41(A)(1). A jury trial commenced on

September 14, 2015. The jury returned a verdict of guilty and on October 29, 2015,

appellant was sentenced to three years of community control, including 200 hours of

community service. This timely appeal followed.

{¶ 4} Appellant sets forth the following two assignments of error:

Assignment of Error One: Appellant was deprived of effective

assistance of counsel in violation of U.S. Const.Amend. VI and Ohio Const.

Art. I, § 10.

Assignment of Error Two: Appellant’s conviction is against the

manifest weight of the evidence and is unsupported by sufficient evidence.

2. {¶ 5} Appellant presents several arguments in support of his claim that he was

denied effective assistance of counsel. Appellant first asserts that counsel prejudicially

elicited prior bad acts testimony from state witnesses and opened the door to character

evidence. Appellant’s other alleged instances of ineffective assistance include counsel’s

failure to subpoena appellant’s roommate as an exculpatory witness; counsel’s failure to

substantiate appellant’s illness, which allegedly kept him from working for a month after

the incident; and counsel’s failure to object to jury instructions regarding unauthorized

use of property as a lesser included offense of theft.

{¶ 6} Before a conviction may be reversed for ineffective assistance of counsel,

the defendant must prove “(1) that counsel’s performance fell below an objective

standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”

State v. Madrigal,

,

(2000), citing Strickland v.

Washington (1984),

,

,

. Ultimately,

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside

the judgment of a criminal proceeding if the error had no effect on the judgment.”

.

{¶ 7} “In evaluating a claim for ineffective assistance of trial counsel, courts must

remember that “[n]o particular set of detailed rules for counsel’s conduct can

satisfactorily take account of the variety of circumstances faced by defense counsel or the

range of legitimate decisions regarding how best to represent a criminal defendant.”

3.

. In fact, “[b]ecause of the difficulties inherent in making

the evaluation, a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance * * *.”

{¶ 8} Appellant first asserts that trial counsel’s conduct throughout the

proceedings was sufficiently prejudicial from start to finish as to require reversal.

Appellant raises arguments based on statements made by trial counsel in opening

statements and closing argument. However, it is well settled that statements made by

counsel in opening statements and closing arguments are not evidence. State v. Frazier,

,

(1995). Appellant also argues that he was

prejudiced because counsel was continually admonished by the court for various

infractions; because counsel failed to properly timely submit his registration fee with the

Ohio Supreme Court; and because counsel failed to appear for sentencing due to legal

issues of his own. We see nothing in these arguments sufficient to warrant reversal.

Appellant has failed to demonstrate how he was prejudiced by trial counsel submitting

his registration fee late. Counsel was not suspended from the practice of law for the late

payment. Trial counsel’s failure to mail his check to the Supreme Court in a timely

fashion had no bearing on his performance during trial and no effect on the outcome of

the trial. Further, counsel’s failure to appear at sentencing obviously had no bearing on

the jury’s verdict.

{¶ 9} Appellant next argues that he was prejudiced by trial counsel’s eliciting prior

bad acts testimony from several state’s witnesses, which opened the door to character

4. evidence. Appellant refers to testimony from Sergeant Edward Holland as to whether he

knew anything about appellant that would affect his credibility as a police officer.

Holland said he did not. On redirect, Holland mentioned appellant’s off-duty DUI

accident. Appellant also asserts that counsel opened the door to character evidence when

he asked Lieutenant Kelli Russell whether he had any reason to question appellant’s

credibility as a police officer; Russell replied he did not. Third, during cross-examination

of Detective Rider, defense counsel raised the issue of appellant’s DUI and Rider stated

he might question appellant’s credibility on that basis.

{¶ 10} Ohio appellate courts have held that the scope of cross-examination clearly

falls within the ambit of trial strategy and that debatable trial tactics do not establish

ineffective assistance of counsel. See State v. Acosta, 6th Dist. Lucas No. L-09-1120,

, ¶ 36; State v. Hoffner,

,

,

. It appears that counsel’s strategy here was to offer evidence that

appellant had a reputation for following procedure on the job and did not have a

reputation for dishonesty. The record reflects that defense counsel successfully elicited

testimony to that effect from several of appellant’s fellow officers: Officer Sahdala,

Detective Rose, Sergeant Holland and Lieutenant Russell. This argument is without

merit.

{¶ 11} Appellant also asserts that trial counsel was deficient for failing to

subpoena appellant’s roommate as an exculpatory witness. Appellant claims he forgot

about the phone because his roommate removed it from appellant’s car and placed it

5. somewhere in the house when he borrowed the car several days after the incident. An

attorney’s failure to subpoena a witness is generally within the realm of trial tactics. In

order to obtain a reversal for ineffective assistance of counsel based on failure to

subpoena a witness, a defendant must demonstrate that the witness’s testimony would be

of significant benefit to the defense. State v. Ensley, 6th Dist. Lucas No. L-94-277,

(Sept. 29, 1995), citing State v. Reese,

,

(1st Dist. 1982). Appellant’s argument as to the potential benefit of his roommate’s

testimony is purely speculative and without merit.

{¶ 12} Next, appellant asserts that trial counsel should have presented medical

records and human resources records which would have substantiated an illness which

kept him from working for a month after the incident. Appellant argues that such

evidence would have been used to corroborate his own testimony that his month-long

absence was due to serious illness. Appellant has not articulated how his medical records

might have assisted in his defense for a theft offense or how he might have been

prejudiced by trial counsel’s failure to offer such evidence. Again, this argument, which

is based purely on speculation, is without merit.

{¶ 13} Appellant argues further that there is a reasonable probability that he was

prejudiced by trial counsel’s failure to object to the state’s request to instruct the jury on

both theft and unauthorized use of property because unauthorized use is not a lesser

included offense of theft. Ultimately, the jury was instructed as to both offenses although

appellant was convicted only of theft in office. However, the record clearly reflects that

6. trial counsel did in fact object to the inclusion of the unauthorized use of property

instruction. Appellant correctly acknowledges in his reply brief that his attorney did

object to the instruction. This argument is therefore without merit.

{¶ 14} Finally, appellant asserts that the cumulative effect of trial counsel’s

conduct throughout the proceedings requires reversal. While it can be argued that

counsel made tactical mistakes during trial, a defendant is entitled to a reasonable

standard of representation, not perfect representation. State v. Hall, 10th Dist. Franklin

No. 04-AP-1242,

.

{¶ 15} “A failure to prevail at trial does not grant an appellant license to appeal the

professional judgment and tactics of his trial attorney.” State v. Hart,

,

(6th Dist. 1988). Further, reviewing courts must not use hindsight to

second-guess trial strategy. See

,

,

. In conclusion, this court finds that appellant has not shown that counsel’s

performance altered the outcome of the trial. Appellant’s first assignment of error is not

well-taken.

{¶ 16} In his second assignment of error, appellant asserts that the state produced

insufficient evidence to show that he acted with “purpose” to commit theft and that his

conviction is against the manifest weight of the evidence.

{¶ 17} Sufficiency of the evidence is a question of law as to whether the evidence

is legally adequate to support a jury verdict as to all elements of the crime. State v.

7. Thompkins,

,

(1997). When reviewing the

sufficiency of the evidence to support a criminal conviction, an appellate court must

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.

{¶ 18} In contrast, a manifest weight challenge questions whether the state has met

its burden of persuasion.

supra, at 387. In making this determination, the court of

appeals sits as a “thirteenth juror” and, after “reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Id., supra, at 386, citing State v. Martin,

,

(1st Dist. 1983).

{¶ 19} Appellant was found guilty of one count of theft in office in violation of

R.C. 2921.41(A)(1) and (B), which provides in relevant part that no public official shall

commit any theft offense when the offender uses his office in aid of committing the

offense. R.C. 2913.02, theft, states in relevant part that no person, with purpose to

8. deprive the owner of property or services, shall knowingly obtain or exert control over

either the property or services without the consent of the owner or person authorized to

give consent.

{¶ 20} With regard to sufficiency of the evidence, appellant asserts that the state

failed to prove that he purposely deprived someone of property when he picked up the

cell phone. Appellant admits that he failed to book the phone as “found property” before

the end of his shift, according to Toledo Police Department (“TPD”) procedure, and

testified that he had hoped the owner would call the phone in an attempt to reclaim it.

Testimony at trial showed that appellant failed to return the phone after it was recovered

and took the phone home with him. The phone was not recovered by the TPD until

officers, acting upon an address obtained by the owner of the phone when she used the

GPS locater function, went to appellant’s house two days later.

{¶ 21} Accordingly, the state presented evidence that appellant had used his

position as a police officer to steal property obtained at a possible crime scene.

Appellant’s violation of departmental policy by taking the phone home, where he kept it

for two days before the officers came to his home, gave rise to the permissible inference

that he had committed a theft offense.

{¶ 22} Appellant argues that the abandoned hotel was not a crime scene and

therefore there could be no “tangible nexus” between his official duties and a theft

offense. While the testimony of several of the responding officers reflects that there was

evidence that a trespass had occurred—thus creating the crime scene to which appellant

9. responded while on duty—whether or not a crime had occurred at the scene is

inconsequential. This argument is without merit.

{¶ 23} Based on the foregoing, we find that the state presented sufficient evidence

to support the conviction of theft in office.

{¶ 24} In support of his argument that his conviction was against the weight of the

evidence, appellant asserts that the credibility of the witnesses is “key,” but fails to point

to specific testimony from state’s witnesses that was not credible. As this court has

consistently affirmed, the trier of fact is vested with the discretion to weigh and evaluate

the credibility of conflicting evidence in reaching its determination. It is not within the

proper scope of the appellate court’s responsibility to judge witness credibility. See State

v. Davis, 6th Dist. Wood No. WD-10-077,

.

{¶ 25} Officer Jeffrey Scott testified that appellant volunteered to book the phone

into the night property room. After that, the officers on the scene dispersed. Officer

Nathaniel Sahdala, another one of the officers on the scene, testified that he saw the

phone and picked it up as the officers began to investigate the scene. Sahdala testified

that at some point the phone was given to appellant, since appellant would be off duty

earlier than Sahdala, whose understanding was that appellant was going to book the

phone into the property room. Additionally, appellant testified that he was handed the

phone by Sahdala and that Sergeant Bell told appellant to write a report for the phone as

found property.

10. {¶ 26} Appellant testified that he forgot to book the phone because he had a lot

going on in his personal life. The record reflects that appellant still had possession of the

phone two days later, June 5, 2015, when Officer Bettinger arrived at his home after the

phone’s locater function, accessed online by the phone’s owner, indicated appellant’s

address. Appellant testified that because Bettinger said the owners told him the phone

they were looking for had been lost at a Waffle House, he did not realize they were

referring to the phone found in the abandoned Clarion. Appellant testified that, later that

day, he returned home to find Internal Affairs officers waiting to talk to him about the

phone. After a brief discussion, appellant retrieved the phone from inside his house and

gave it to the officers, who confirmed it was the phone in question.

{¶ 27} Officer Bettinger testified that when he went to appellant’s house and told

him the phone was pinging to his address, appellant said he did not have the phone.

Appellant told Bettinger that if he found the phone he would call the owner. The owner,

frustrated that Bettinger was not able to enter the house and look for the phone without a

warrant, then went to Internal Affairs upon Bettinger’s suggestion. Officer John Rose

confirmed that, following a meeting with the owner of the phone, he and two other

officers went to appellant’s house. Appellant met them there and Rose told him they

were looking for the phone. Rose testified that appellant asked them to wait a minute,

went into his house and returned with several cell phones. It was then determined that

one of the phones belonged to the complainant.

11. {¶ 28} After considering the entire record that was before the trial court and

weighing the evidence and all reasonable inferences, we cannot say that the jury clearly

lost its way or created a manifest miscarriage of justice by finding appellant guilty of the

charge against him.

,

. Based on

the foregoing, appellant’s manifest weight argument is without merit.

{¶ 29} Accordingly, appellant’s second assignment of error is not well-taken.

{¶ 30} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. The stay of the community control sentence entered on

January 28, 2016, is hereby lifted. Costs of this appeal are assessed to appellant pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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