[Cite as State v. Stevenson,
2011-Ohio-5996.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 10CA0049-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THOMAS R. STEVENSON COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 09-CR-0386
DECISION AND JOURNAL ENTRY
Dated: November 21, 2011
CARR, Judge.
{¶1} Appellant, Thomas Stevenson, appeals his conviction in the Medina County Court
of Common Pleas. This Court affirms.
I.
{¶2} Amanda Harvey was away from her trailer home when her neighbor, Jerome
Cruey, called her on her cell phone to tell her that a man had entered her trailer through a
window. Mr. Cruey identified Stevenson as the intruder. When Ms. Harvey returned home, she
saw that her new television was wedged in the frame of one of the windows to her home. The
police arrived at the scene, found Stevenson, and arrested him. Stevenson was indicted on one
count of burglary. A jury found him guilty of the charge. The trial court sentenced him to four
years in prison. Stevenson filed a timely appeal, raising two assignments of error for review.
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II.
ASSIGNMENT OF ERROR I
“APPELLANT’S CONVICTION FOR BURGLARY MUST BE REVERSED
DUE TO THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
COUNSEL’S INEFFECTIVENESS DEPRIVED APPELLANT OF A FAIR
TRIAL.”
{¶3} Stevenson argues that trial counsel was ineffective for failing to object to
numerous hearsay statements, failing to effectively cross-examine the eye witness to the crime,
failing to exploit major discrepancies in the witnesses’ testimony, and failing to present
testimony on behalf of his client “to corroborate [] Stevenson’s testimony.” The argument is not
well taken.
{¶4} To establish the existence of ineffective assistance of counsel, Stevenson must
satisfy a two-pronged test:
“First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” State v. Hoehn, 9th
Dist. No. 03CA0076-M, 2004-Ohio-1419, at ¶43, quoting Strickland v.
Washington (1984), 466 U.S. 668, 687.
{¶5} Stevenson bears the burden of proving that counsel’s assistance was ineffective.
Hoehn at ¶44; see, also, State v. Smith (1985), 17 Ohio St.3d 98, 100. In this regard, there is a
“strong presumption [] that licensed attorneys are competent and that the challenged action is the
product of a sound strategy.” State v. Watson (July 30, 1997), 9th Dist. No. 18215. In addition,
“debatable trial tactics do not give rise to a claim for ineffective assistance of counsel.” Hoehn at
¶45; see, also, State v. Clayton (1980),
62 Ohio St.2d 45, 49. Even if this Court questions trial
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counsel’s strategic decisions, we must defer to his judgment. Id. The Ohio Supreme Court has
stated:
“‘We deem it misleading to decide an issue of competency by using, as a
measuring rod, only those criteria defined as the best of available practices in the
defense field.’ … Counsel chose a strategy that proved ineffective, but the fact
that there was another and better strategy available does not amount to a breach of
an essential duty to his client.” Id., quoting State v. Lytle (1976),
48 Ohio St.2d
391, 396.
Hearsay statements
{¶6} Stevenson argues that trial counsel was ineffective for failing to object to the
admission of certain hearsay statements, specifically, the victim’s testimony regarding what an
eye witness reported to her, that the police told her they had apprehended the suspect, and
whether the eye witness recognized Stevenson in the police cruiser after his apprehension.
{¶7} “[T]his Court has consistently held that ‘trial counsel’s failure to make objections
is within the realm of trial tactics and does not establish ineffective assistance of counsel.’” State
v. Bradford, 9th Dist. No. 22441, 2005-Ohio-5804, at ¶27, quoting State v. Taylor, 9th Dist. No.
01CA007945,
2002-Ohio-6992, at ¶76. In this case, defense counsel’s failure to object was a
tactical decision. Further, Stevenson has not demonstrated that such failure to object was not
sound trial strategy.
Cross-examination of eye witness
{¶8} Stevenson argues that trial counsel was ineffective for failing to effectively cross-
examine the eye witness to the crime. He complains that trial counsel merely asked three
questions of the eye witness, Jerome Cruey, questioning whether Mr. Cruey had seen and
admired the victim’s new television. Again, defense counsel’s cross-examination fell within the
realm of trial tactics which will not give rise to a claim for ineffective assistance.
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{¶9} In his opening statement, defense counsel clearly set forth his theory of the
defense, specifically, that Mr. Cruey was the one who broke into the victim’s trailer and then
blamed Stevenson for his own botched attempt to steal the television. Trial counsel’s cross-
examination of Mr. Cruey supported his theory of the defense. That the trier of fact did not
accept that theory after hearing the evidence and considering the credibility of the witnesses does
not render defense counsel’s performance deficient.
Discrepancies in witnesses’ testimony
{¶10} Stevenson argues that trial counsel was ineffective for failing to exploit
discrepancies in the testimony of the various witnesses. He first argues that trial counsel failed
to exploit Mr. Cruey’s purported internally inconsistent testimony that Stevenson ran out of the
mobile home and that he did not see Stevenson leave the mobile home. Mr. Cruey’s testimony
was not inconsistent. He testified that, as Stevenson tried to push the television out a window, he
(Mr. Cruey) walked away from the trailer to call the victim to alert her to the situation at her
home. Mr. Cruey then testified that, when he returned, Stevenson had “vanished” from inside
the trailer although he did not see him exit. As this testimony was clear, there were no
inconsistencies for defense counsel to “exploit.”
{¶11} Stevenson next argues that trial counsel failed to exploit discrepancies between
the testimony of Mr. Cruey and that of the victim, Amanda Harvey, and between Officer
Bammerlin and Ms. Harvey. Deciding to allow the jury to determine the credibility of the
witnesses in the face of testimonial inconsistencies, rather than giving the witnesses the ability to
explain away any inconsistencies, amounts to a tactical decision and does not rise to the level of
deficient performance.
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Corroborating testimony
{¶12} Finally, Stevenson argues that trial counsel was ineffective for failing to present
the testimony of witnesses who could corroborate his own testimony regarding his whereabouts
at the time of the burglary. However, Stevenson did not testify at trial. Moreover, Stevenson has
not demonstrated that any witnesses who could have provided an alibi for him actually existed.
{¶13} Stevenson has failed to establish that trial counsel’s performance was deficient.
His first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING IN
PREJUDICIAL 404(B) EVIDENCE AND BY ADMITTING AN IRRELEVANT
PIECE OF EVIDENCE WHOSE PROBATIVE VALUE WAS OUTWEIGHED
BY ITS PREJUDICIAL EFFECT. THE ADMISSION OF THIS EVIDENCE
CONSTITUTED PLAIN ERROR.”
{¶14} Stevenson argues that the trial court committed plain error by admitting evidence
of other crimes, wrongs, or acts in violation of Evid.R. 404(B), and by admitting other evidence
which was irrelevant or whose probative value was substantially outweighed by its prejudicial
effect. This Court disagrees.
{¶15} Stevenson did not object to the admission of either evidentiary matter. Crim.R.
52(B) permits a court to notice plain errors or defects which affect substantial rights although
they have not been brought to the attention of the court. This Court reviews an issue for plain
error in cases where the appellant has otherwise forfeited the issue on appeal by failing to raise it
below at a time when the trial court had the opportunity to correct the alleged error. State v.
Dent, 9th Dist. No. 20907, 2002-Ohio-4522, at ¶6. To constitute plain error, the error must be
obvious and have a substantial adverse impact on both the integrity of, and the public’s
confidence in, the judicial proceedings. State v. Tichon (1995),
102 Ohio App.3d 758, 767. A
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reviewing court must take notice of plain error only with the utmost caution, and only then to
prevent a manifest miscarriage of justice. State v. Bray, 9th Dist. No. 03CA008241, 2004-Ohio-
1067, at ¶12. This Court may not reverse the judgment of the trial court on the basis of plain
error, unless Stevenson has established that the outcome of the trial clearly would have been
different but for the alleged error. State v. Kobelka (Nov. 7, 2001), 9th Dist. No. 01CA007808,
citing State v. Waddell (1996), 75 Ohio St.3d 163, 166.
Admission of other crimes, wrongs, or acts
{¶16} Evid.R. 404(B) states: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶17} Stevenson argues that the trial court erred by admitting evidence of other wrongs
or crimes when it allowed the victim to testify regarding Stevenson’s “selling of stolen
merchandise.” Stevenson mischaracterizes the victim’s testimony. Amanda Harvey testified
that Stevenson, a man she had seen in the neighborhood and knew only as “Thomas,” stopped by
her trailer the day before the burglary. She testified that he asked her whether she would like to
buy any gaming systems or video games. Ms. Harvey testified that she declined Stevenson’s
offer because she thought the merchandise might be stolen and she did not want to get into
trouble. Ms. Harvey did not testify that Stevenson has sold stolen merchandise in the past or
even that he was attempting to sell her stolen merchandise on that day. She merely noted her
own apprehension about buying merchandise from someone she did not know well.
Accordingly, the trial court did not admit any evidence of Stevenson’s other wrongs or crimes so
as to implicate Evid.R. 404(B). The trial court committed no error, let alone harmless error.
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Admission of irrelevant or prejudicial evidence
{¶18} Evidence is relevant when it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Evid.R. 401. Evid.R. 402 provides that relevant evidence is
generally admissible. Evid.R. 403 provides two exceptions to the general rule, including where
exclusion of the evidence is mandatory:
“(A) Although relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.”
{¶19} Stevenson argues that the trial court committed plain error by admitting into
evidence a cell phone found outside the victim’s trailer after the burglary. He first argues that
the cell phone, which did not belong to any residents in the victim’s trailer but which had not
been linked to any other specific person, was not relevant. Because none of the residents of the
trailer were home when the television became wedged in the window, the perpetrator was
necessarily not one of the residents. Although perhaps not highly probative, the cell phone was
relevant to show that someone with no ties to the residence was recently on the property.
{¶20} Stevenson next unwittingly, yet necessarily, concedes that the cell phone was
relevant but argues that its probative value was substantially outweighed by its prejudicial effect.
See Evid.R. 403(A). The cell phone could not be tied to any specific person and, therefore,
could have just as easily implicated Mr. Cruey for the crime instead of Stevenson. Accordingly,
rather than unfairly prejudicing Stevenson, the admission of the unidentified phone could have
reasonably bolstered Stevenson’s theory of his defense that Mr. Cruey was the one who broke
into Ms. Harvey’s trailer and attempted to steal her television. Mr. Cruey, after all, admitted that
he had a cell phone outside Ms. Harvey’s trailer during the commission of the burglary. Under
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the circumstances, Stevenson has failed to establish any error by the trial court in admitting the
cell phone into evidence. Stevenson’s second assignment of error is overruled.
III.
{¶21} Stevenson’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, J.
CONCURS
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BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶22} I concur in the judgment of the majority. With respect to the second assignment
of error, I agree that any error present does not amount to plain error.
APPEARANCES:
DAVID C. SHELDON, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant
Prosecuting Attorney, for Appellee.
