[Cite as State v. Reeves,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NO. CA2020-01-001

Appellee, : OPINION 12/7/2020 : - vs - :

VALERIE J. REEVES, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2019CRB03616

D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside Drive, 2nd floor, Batavia, Ohio 45103, for appellee

Denise S. Barone, 385 North Street, Batavia, Ohio 45103-3005, for appellant

M. POWELL, P.J.

{¶ 1} Appellant, Valerie Reeves, appeals her conviction and sentence in the

Clermont County Municipal Court for theft.

{¶ 2} On July 11, 2019, Brittinian Terry ("Terry") went to a laundromat to dry

bedding she had recently purchased from Amazon. The bedding consisted of a comforter, Clermont CA2020-01-001

a sheet, and five pillow cases. Terry put the bedding in a dryer, then left the laundromat to

run some errands while the bedding dried. When Terry returned to the laundromat a few

hours later, she discovered the bedding was gone. A single dryer sheet lay on the floor in

front of the dryer she had used for her bedding. Terry called the police. Clermont County

Sheriff Deputy Christopher Shouse responded and took a statement from Terry.

{¶ 3} Deputy Shouse obtained the laundromat surveillance videotape for the time

period during which Terry's bedding was drying. The videotape shows a woman and a man,

later identified as appellant and her husband, folding laundry. Appellant is seen walking

offscreen toward the Sunoco gas station and returning with a box of black plastic garbage

bags. The gas station is attached to the laundromat and can be accessed through a door

between the two businesses. Appellant approaches the dryer containing Terry's bedding,

looks toward the front door of the laundromat, and opens the dryer. Appellant is then seen

gesturing toward the front door and speaking to her husband. Appellant then removes the

bedding from the dryer as a single dryer sheet falls from the dryer onto the floor. Appellant

folds the bedding, places it atop a nearby washer, and then returns to the table where her

folded laundry is. As appellant puts her laundry into baskets, she is seen continually

glancing toward the front door. She then walks back to the folded bedding, puts it in a black

garbage bag, and puts the garbage bag into another garbage bag. Appellant and her

husband are then seen exiting the laundromat. Appellant is carrying the double garbage

bags containing the bedding; her husband is carrying laundry in laundry baskets.

{¶ 4} Based upon the surveillance videotape, Deputy Shouse sent pictures of

appellant in a county-wide e-mail in the hopes of obtaining an identification. A few days

later, a Clermont County deputy sheriff made a traffic stop of appellant and recognized her

as the woman in the laundromat surveillance videotape. The deputy confirmed with

appellant that she uses the laundromat in question and obtained her name and contact

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information. A few days later, on July 25, 2019, Deputy Shouse went to appellant's house.

Appellant greeted the deputy, stating, "I heard you were coming."

{¶ 5} Upon being shown a still photograph taken from the laundromat surveillance

videotape, appellant confirmed it was her and her husband in the photograph. Appellant

repeatedly and adamantly denied taking anything that did not belong to her, but stated that

if she did, she would gladly give it back. Appellant further denied taking the bedding from

the dryer. When asked whether she could have taken the bedding by mistake, appellant

replied, "No." Appellant alternatively stated she did not have the bedding, she did not take

it out of the laundromat, "that's my blanket that I took out of [the dryer]," and that she did

not own bedding matching Terry's bedding. Appellant further told Deputy Shouse that "just

because I folded [the bedding] that doesn't mean I took them." With appellant's written

consent, Deputy Shouse subsequently searched appellant's home and vehicle. No bedding

matching Terry's bedding was found by the deputy.

{¶ 6} On August 3, 2019, appellant was charged by complaint with one count of

theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. The matter

proceeded to a jury trial in December 2019. Terry and Deputy Shouse testified on behalf

of the state. Appellant did not testify on her own behalf or present witnesses in support of

her defense.

{¶ 7} Terry testified she did not give appellant or anyone else permission to take

her bedding. Deputy Shouse testified that upon comparing the bedding appellant removed

from the dryer used by Terry to the bedding purchased by Terry, as shown on the Amazon

purchase order provided to the deputy, the bedding was the same, "a definite 100 percent

match." He further testified that only the bedding and no other laundry came out of the

dryer.

{¶ 8} Following the state's case-in-chief, appellant moved for acquittal pursuant to

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Crim.R. 29. The motion was denied by the trial court. On December 17, 2019, the jury

found appellant guilty as charged. The trial court sentenced appellant to 60 days in jail,

with 30 days suspended, and two years of community control. Appellant was further

required to complete 24 hours of community service, fined $100, and ordered to pay

restitution.

{¶ 9} Appellant now appeals, raising five assignments of error.1

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY REFUSING TO ALLOW AN AFFIRMATIVE DEFENSE OF

ABANDONMENT TO BE PRESENTED TO THE JURY.

{¶ 12} Appellant argues the trial court erred by failing to instruct the jury on the

affirmative defense of abandonment. Appellant asserts that Terry's failure to label her

bedding with her name, the fact that laundromats are places open to the public, and the fact

Terry left her bedding unattended for several hours supported a jury instruction on

abandonment.

{¶ 13} Appellant did not request a jury instruction on abandonment, thereby waiving

all but plain error. State v. Brown, 12th Dist. Clermont No. CA2018-05-027, 2018-Ohio-

4939, ¶ 15. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court." "Plain error

does not exist unless it can be said that but for the error, the outcome of the trial would

1. We note with disapproval appellant's approach of raising issues that require different legal analyses under her second and fourth assignments of error, instead of properly raising each specific issue in separate assignments of error. See Loc.R. 11(B)(3); State v. Harner, 12th Dist. Brown No. CA2019-10-012, 2020- Ohio-3071, ¶ 6, fn. 2. "App.R. 16(A)(7) requires separate arguments for each assignment of error. While appellate courts may jointly consider two or more assignments of error, the parties do not have the same option in presenting their arguments." Keffer v. Cent. Mut. Ins. Co., 4th Dist. Vinton No. 06CA652, 2007-Ohio- 3984, ¶ 8, fn. 2; State v. Dukes, 4th Dist. Scioto Nos. 16CA3745 and 16CA3760,

. Consequently, we rearrange appellant's foregoing assignments of error and construe her second assignment of error as an insufficiency and manifest weight of the evidence challenge and her fourth assignment of error as an ineffective assistance of counsel challenge. -4- Clermont CA2020-01-001

clearly have been otherwise." State v. Biros,

,

. This

court should notice plain error with the utmost caution, under exceptional circumstances

and only to prevent a miscarriage of justice. Brown at ¶ 15.

{¶ 14} Moreover, a trial court does not err in failing to instruct the jury on an

affirmative defense where the evidence is insufficient to support the instruction. State v.

Palmer,

,

; State v. Davis, 12th Dist. Madison No.

CA2015-05-015,

, ¶ 35.

{¶ 15} A defendant cannot be convicted of theft if he or she can show that (1) the

owner of the property actually abandoned the property, or (2) the accused reasonably

believed that the property had been abandoned. State v. Noe, 12th Dist. Butler No.

CA2008-08-182,

, ¶ 9. The word "abandonment" has been described by

this court as an "'absolute unequivocal relinquishment of a right or status without regard to

self or any other person[,]'" and "'a virtual throwing away without regard as to who may take

over or carry on.'" Hamilton v. Harville,

(12th Dist. 1989), quoting

Davis v. Suggs,

(12th Dist. 1983). Abandonment requires affirmative

proof of the intent to abandon coupled with acts or omissions implementing the intent. Noe

at ¶ 9. Mere non-use is not sufficient in itself to establish abandonment, absent other

evidence tending to prove the intent to abandon.

.

{¶ 16} We find no plain error in the lack of a jury instruction on the affirmative defense

of abandonment because the evidence did not support such instruction. As to actual

abandonment, the evidence shows that Terry used a dryer sheet and paid to have the

bedding dried, an action that is inconsistent with an intent to abandon the bedding. This

same factor is also relevant to whether appellant reasonably believed the bedding had been

abandoned, as one would not reasonably believe that the owner of the bedding would pay

to dry bedding the owner intended to abandon. Furthermore, appellant's statements to

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Deputy Shouse do not support that she reasonably believed the bedding had been

abandoned. Appellant never told the deputy that she believed the bedding had been

abandoned. Rather, appellant told the deputy that the bedding was hers and that she did

not take it by mistake before also suggesting she only folded the bedding and did not

remove it from the laundromat.

{¶ 17} Appellant's first assignment of error is overruled.

{¶ 18} Assignment of Error No. 2:

{¶ 19} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT IN REFUSING TO GRANT HER CRIMINAL RULE 29 MOTION FOR

ACQUITTAL. THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.

THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN

IT ALLOWED THE JURY VERDICT TO STAND.

{¶ 20} Appellant summarily argues that (1) the trial court erred in denying her Crim.R.

29(A) motion for acquittal, (2) her theft conviction is not supported by sufficient evidence

because "[t]here was room for doubt in the facts of this case," and (3) the jury verdict was

contrary to the manifest weight of the evidence.

{¶ 21} App.R. 16(A)(7) requires an appellant's brief to contain "the contentions of the

appellant with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the record

on which appellant relies." Thus, an appellant must indicate to the appellate court

specifically where the alleged errors may be located in the record. State v. Gulley, 12th

Dist. Clermont No. CA2005-07-066,

. This court may disregard an

assignment of error if a party fails to identify in the record the error on which the assignment

of error is based as required by App.R. 16(A). Id.; App.R. 12(A)(2). "It is not the duty of an

appellate court to search the record for evidence to support an appellant's argument as to

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any alleged error." State v. Watson,

(12th Dist. 1998). An

appellate court is not a performing bear, required to dance to each and every tune played

on an appeal. Gulley at ¶ 28. Appellant's second assignment of error is accordingly

overruled.

{¶ 22} Assignment of Error No. 3:

{¶ 23} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT REFUSED TO ALLOW DEFENSE COUNSEL TO PRESENT A

LIMITING INSTRUCTION TO THE JURY.

{¶ 24} Appellant argues the trial court erred by failing to instruct the jury on the

affirmative defense of mistake of fact. The record shows that defense counsel objected to

the trial court's intention to omit a jury instruction on mistake of fact. Defense counsel

argued that the instruction was warranted because appellant may have mistakenly believed

the bedding was hers. The trial court overruled the objection because appellant denied she

took the bedding by mistake in her statements to Deputy Shouse.

{¶ 25} Appellant was charged with theft in violation of R.C. 2913.02(A)(1), which

prohibits anyone, with purpose to deprive the owner of property, from knowingly obtaining

or exerting control over the property without the consent of the owner. Generally, "mistake

of fact is a defense if it negates a mental state required to establish an element of a crime[.]"

State v. Pecora,

(9th Dist. 1993). Mistake of fact can, in

appropriate circumstances, negate the knowingly element of a specific intent crime such as

theft. Columbus v. Harbuck, 10th Dist. Franklin No. 99AP-1420,

, *12 (Nov. 30, 2000); State v. Crisp, 10th Dist. Franklin No. 06AP-146, 2006-Ohio-

5041, ¶ 10.

{¶ 26} "A trial court is not required to instruct the jury on [an affirmative defense] in

every case where it is attempted to be presented. The defendant must first present

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sufficient evidence at trial to warrant such an instruction." State v. Napier, 12th Dist.

Clermont No. CA2016-04-022,

. "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." Davis, 2016-Ohio-

1166 at ¶ 35. If the trial court finds that the evidence is legally insufficient to raise the issue,

it will remove the issue from jury consideration. Napier at ¶ 27. We review this decision for

an abuse of discretion.

{¶ 27} We find no abuse of discretion in the trial court's refusal to instruct the jury on

the affirmative defense of mistake of fact because appellant has failed to show such a jury

instruction was required in light of the evidence presented at trial. Appellant did not testify

at trial or present witnesses in support of her defense. Thus, the only evidence she took

the bedding in the mistaken belief it belonged to her must be implied from her statement to

Deputy Shouse that everything she took from the laundromat belonged to her. However,

appellant also categorically denied she removed the bedding from the laundromat, explicitly

denied taking the bedding by mistake, and further confirmed she does not own bedding

matching the description of Terry's bedding. Accordingly, the mistake of fact defense was

not warranted and the trial court did not err in failing to incorporate such defense into the

jury instructions. See State v. Jackson, 9th Dist. Wayne No. 2754,

(May 4, 1994).

{¶ 28} Appellant's third assignment of error is overruled.

{¶ 29} Assignment of Error No. 4:

{¶ 30} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL

COUNSEL.

{¶ 31} Appellant argues her trial counsel was ineffective because he (1) made a pro

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forma motion for acquittal under Crim.R. 29(A) and failed to argue the motion, (2) did not

cross-examine Terry regarding whether she had put her name on the bedding and why she

was away from the laundromat for three hours, and (3) failed to request a jury instruction

on the lesser included offense of unauthorized use.

{¶ 32} To prevail on her ineffective assistance of counsel claim, appellant must show

that her trial counsel's performance was deficient and that she was prejudiced as a result.

State v. Harner, 12th Dist. Brown No. CA2019-10-012,

; Strickland v.

Washington,

,

(1984). Trial counsel's performance

will not be deemed deficient unless it fell below an objective standard of reasonableness.

. To show prejudice, appellant must establish that, but for her trial

counsel's errors, there is a reasonable probability that the result of her trial would have been

different.

. An appellate court must give wide deference to the strategic and

tactical choices made by trial counsel in determining whether counsel's performance was

constitutionally ineffective.

. The failure to satisfy either prong of the Strickland

test is fatal to an ineffective assistance of counsel claim. Harner at ¶ 32.

{¶ 33} Trial counsel was not ineffective in the manner he made the Crim.R. 29(A)

motion for acquittal after the state's case-in-chief. "As a general matter, the failure of trial

counsel to make a Crim.R. 29 motion does not constitute ineffective assistance of counsel

when the state's case-in-chief links the defendant to the crimes of which he or she is

accused." State v. Walker, 10th Dist. Franklin No. 04AP-813,

.

"Hence, if the state's case-in-chief links the defendant to the crimes of which he or she is

accused, ineffective assistance of counsel is not shown where defense counsel fails to fully

argue a Crim.R. 29 motion for acquittal."

A review of the record shows that prior to the

motion, through Deputy Shouse's testimony, the state's case-in-chief did link appellant to

the crime she had been charged with and presented sufficient evidence to submit the matter

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to the jury; therefore, ineffective assistance of counsel has not been shown in relation to the

Crim.R. 29 motion.

{¶ 34} Trial counsel was not ineffective in his cross-examination of Terry. Contrary

to appellant's assertion, trial counsel did ask Terry whether she puts any identification mark

on bedding she purchases, including the bedding at issue here. While trial counsel failed

to cross-examine Terry as to why she was away from the laundromat for three hours, Terry

testified on direct examination that she "had to go to Lowes and it's a little bit of a drive[.]"

It is well established that the manner trial counsel chooses to cross-examine the state's

witnesses is a matter of trial strategy, and in fact, limited or no cross-examination of a

witness may be the best strategy. State v. Petit, 12th Dist. Madison No. CA2016-01-005,

; State v. Otte,

,

(cross-

examining a witness can backfire). Furthermore, as this court has consistently held,

debatable trial tactics and strategies do not establish ineffective assistance of counsel.

State v. Burns, 12th Dist. Clinton No. CA2013-10-019,

; State v.

Leonard,

,

, ¶ 146. We further note that appellant does

not explain how she was prejudiced by the manner trial counsel cross-examined Terry. Had

trial counsel asked more or different questions, there is no indication that the answers would

have been helpful to appellant's defense, or that further cross-examination would have

resulted in a not-guilty verdict. Accordingly, appellant did not receive ineffective assistance

of counsel during trial counsel's cross-examination of the state's witness. Petit at ¶ 52.

{¶ 35} In support of her argument that trial counsel was ineffective for failing to

request a jury instruction on the lesser included offense of unauthorized use, appellant cites

R.C. 2913.03 and quotes the statute almost in its entirety. R.C. 2913.03 sets forth the

elements of the offense of unauthorized use of a vehicle as well as the affirmative defenses

to a charge under this statute and applies solely to the unauthorized use of "an aircraft,

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motor vehicle, motorcycle, motorboat, or other motor-propelled vehicle[.]" The property at

issue here is bedding, not a vehicle.

{¶ 36} Furthermore, "[a] jury instruction on a lesser included offense is required only

where the evidence presented at trial would reasonably support both an acquittal of the

crime charged and a conviction on the lesser included offense." State v. Tolle, 12th Dist.

Clermont No. CA2014-06-042,

, ¶ 11. Appellant does not explain how she

was prejudiced by trial counsel's failure to request a jury instruction on the lesser included

offense of unauthorized use. Furthermore, appellant makes no argument suggesting how

the evidence would reasonably support an acquittal for theft but a conviction for

unauthorized use of property. We also note that prior to trial, the state offered to amend

the theft charge to an unauthorized use of property charge in exchange for a guilty plea,

however, appellant rejected the plea offer. In light of the foregoing, trial counsel was not

ineffective in failing to request a jury instruction on the lesser included offense of

unauthorized use.

{¶ 37} Appellant's fourth assignment of error is overruled.

{¶ 38} Assignment of Error No. 5:

{¶ 39} THE TRIAL COURT ERRED TO THE PREJUDICE OF VALERIE REEVES

IN SENTENCING HER TO SERVE THIRTY DAYS IN JAIL.

{¶ 40} Appellant argues that her 30-day jail sentence for a first conviction of theft for

an item worth only $60 is excessive. Appellant further argues that while the trial court did

not make any inappropriate statements at sentencing, it nevertheless punished her for

exercising her right to a jury trial.

{¶ 41} We review a trial court's sentence on a misdemeanor violation under an abuse

of discretion standard. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-060, 2014-

Ohio-2238, ¶ 31.

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{¶ 42} Pursuant to R.C. 2929.21 and 2929.22, trial courts have broad discretion

when determining what sentence is appropriate for each given misdemeanor case. When

determining the appropriate sentence, the trial court must be guided by the purposes of

misdemeanor sentencing which are "to protect the public from future crime by the offender

and others and to punish the offender." R.C. 2929.21(A). The trial court must also consider

the factors listed in R.C. 2929.22(B)(1), including the nature and circumstances of the

offense, and may consider any other factors that are relevant to achieving the purposes and

principles of misdemeanor sentencing. R.C. 2929.22(B)(2). "Although it is preferable that

the trial court affirmatively state on the record that it has considered the criteria set forth in

R.C. 2929.21 and R.C. 2929.22, the statute does not mandate that the record state that the

trial court considered the applicable statutory factors." Kinsworthy at ¶ 30. A trial court is

presumed to have considered the statutory factors when the sentence is within the statutory

limits and there is no affirmative showing that the trial court failed to do so.

{¶ 43} The sentence imposed on appellant falls within the statutory limits under R.C.

2929.24(A)(1). The record indicates that the trial court considered the purposes of

misdemeanor sentencing under R.C. 2929.21, the factors listed in R.C. 2929.22, and "the

actions of [appellant] as the events unfolded." The trial court found appellant's offense to

be serious because it involved the theft of an individual's personal property, thus implicating

the individual's privacy. Appellant declined to exercise her right to allocution and with it, the

opportunity to plead her case and express remorse prior to her sentencing. Additionally,

the record shows that appellant never accepted responsibility for her conduct. "Acceptance

of responsibility is an appropriate sentencing consideration." State v. Rahab,

,

. In light of the foregoing, appellant's sentence is not

excessive and the trial court did not abuse its discretion in sentencing appellant to 60 days

in jail, with 30 days suspended.

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{¶ 44} Appellant further argues the trial court punished her for exercising her right to

a jury trial.

{¶ 45} "[A] defendant is guaranteed the right to a trial and should never be punished

for exercising that right[.]" State v. O'Dell,

(1989); State v. Noble,

12th Dist. Warren No. CA2014-06-080,

, ¶ 11. "[A] sentence vindictively

imposed on a defendant for exercising his constitutional right to a jury trial is contrary to

law," "regardless of whether the evidence of his guilt is said to be overwhelming." Rahab,

; Noble at ¶ 11. Moreover, it is improper for a trial court to create the

mere appearance that it has increased a defendant's sentence because the defendant has

elected to put the government to its proof. Noble at ¶ 12. A court may not make statements

from which someone may infer that a defendant may have been punished for pursuing a

jury trial.

The appearance of a trial tax is impermissible as it creates a chilling effect on

one's constitutional right to trial.

{¶ 46} Upon reviewing the record, we find that the trial court did not impose an

increased sentence in retaliation for appellant pursuing a jury trial. Appellant does not

identify what evidence supports her claim that the trial court imposed an improper trial tax

and in fact, admits that the trial court did not make any inappropriate statements at

sentencing. Nothing in the record indicates or suggests that the trial court based its

sentence upon appellant's decision to go to trial. In particular, unlike the lower court in

Noble, the trial court never commented on appellant's choice to proceed to trial. Noble at

¶ 13 (trial court chastising the defendant for wasting the jury's time with his trial, commenting

on the defendant's decision to take a shot and hope the jury was "dumb enough to buy

some of these nonsensical arguments," and refusing to give the defendant any benefit of

leniency).

{¶ 47} Appellant's fifth assignment of error is accordingly overruled.

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{¶ 48} Judgment affirmed.

RINGLAND and PIPER, JJ., concur.

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