[Cite as State v. Martin,
2019-Ohio-22.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2017-L-005
- vs - : 2017-L-006
KEVIN L. MARTIN, :
Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2016 CR
000593 and 2016 CR 000633.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, and Kelsey R. Lutz,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Plaintiff-Appellee).
Edward M. Heindel, 400 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Kevin L. Martin, appeals his convictions for various
offenses following separate jury trials in the Lake County Court of Common Pleas. The
issues before this court are whether a court abuses its discretion when it refuses to
allow a defendant to plead guilty to a single count of a multiple-count indictment on the
day of trial where the defendant gains no benefit by pleading and suffers no prejudice
by having the charge tried; whether a court commits plain error by not severing certain
counts from an indictment where the evidence supporting the various counts is simple
and direct; whether a court abuses its discretion by denying a motion to disqualify
appointed counsel where the defendant and counsel disagree about trial strategy;
whether the defendant’s identity as the perpetrator of various crimes is established by
sufficient evidence and supported by the weight of the evidence where it is based on
eyewitness identification and/or the presence of the defendant’s DNA recovered from
items at the scene of the crimes. For the following reasons, we affirm Martin’s
convictions.
{¶2} The present appeal arises from the consolidation of separate criminal
prosecutions. For the sake of clarity, each prosecution and the assignments of error
relative thereto will be discussed separately.
Lake County C.P. No. 16 CR 000593
{¶3} On July 13, 2016, the Lake County Grand Jury indicted Kevin L. Martin for
two counts of Failure to Comply with Order or Signal of Police Officer (Counts 1 and 2),
felonies of the third degree in violation of R.C. 2921.331(B); two counts of Having
Weapons while Under Disability (Counts 3 and 4), felonies of the third degree in
violation of R.C. 2923.13(A)(2); Receiving Stolen Property (Count 5), a felony of the
fourth degree in violation of R.C. 2913.51(A); Improperly Handling Firearms in a Motor
Vehicle (Count 6), a felony of the fourth degree in violation of R.C. 2923.16(B);
Possession of Heroin (Count 7), a felony of the fifth degree in violation of R.C. 2925.11;
three counts of Aggravated Possession of Drugs (Counts 8, 11, and 12), felonies of the
fifth degree in violation of R.C. 2925.11; two counts of Possessing Criminal Tools
(Counts 9 and 10), felonies of the fifth degree in violation of R.C. 2923.24; Possessing
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Drug Abuse Instruments (Count 13), a misdemeanor of the first degree in violation of
R.C. 2925.12; Possession of Marijuana (Count 14), a minor misdemeanor in violation of
R.C. 2925.11; Driving Under Financial Responsibility Law Suspension or Cancellation
(Count 15), an unclassified misdemeanor in violation of R.C. 4510.16(A); and Reckless
Operation (Count 16), a minor misdemeanor in violation of R.C. 4511.20(A). Counts 2,
5, 7, 8, 9, 10, 11, and 12 included Firearm Specifications pursuant to R.C. 2941.141.
Counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 included Forfeiture Specifications pursuant
to R.C. 2941.1417 and 2981.04.
{¶4} On July 15, 2016, Martin was arraigned and entered a plea of “Not Guilty”
to the charges in the Indictment.
{¶5} On October 11, 2016, Martin filed a pro se Motion to Disqualify Counsel.
A hearing on the Motion was held on the same day as it was filed and the trial court
denied the Motion, finding “insufficient cause to disqualify counsel.”
{¶6} At a pretrial on November 1, 2016, Martin made an oral pro se request for
a continuance to retain new counsel. The trial court denied the request after contacting
new counsel who advised that he had not been retained by Martin and would not be
prepared to represent him by the scheduled trial date.
{¶7} Between November 7 and 9, 2016, a jury trial was held. Prior to trial, the
State dismissed Counts 5 (Receiving Stolen Property), 13 (Possessing Drug Abuse
Instruments), 14 (Possession of Marijuana), 15 (Driving Under Financial Responsibility
Law Suspension or Cancellation), and 16 (Reckless Operation). The remaining counts
were renumbered Counts 1 through 11. During trial, the State amended Count 6
(Possession of Heroin – Count 7 of the Indictment) to a felony of the fourth degree.
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Also prior to trial, Martin indicated that he wanted to plead guilty to Count 1 (Failure to
Comply) but the trial court refused to accept the plea.
{¶8} The following testimony was presented on behalf of the State.
{¶9} Officer James Smith of the Wickliffe Police Department testified that, on
October 7, 2015, at approximately 1:30 p.m., he encountered a red-maroon minivan
travelling westbound on Route 2 near the Lloyd Road exit. Smith stopped the minivan.
As he was approaching the vehicle on foot, it drove away. Smith returned to his cruiser
and pursued it onto I-90.
{¶10} The minivan exited at Euclid Avenue and continued driving west at a high
rate of speed, striking several other vehicles in its flight. The pursuit continued down
side streets to St. Clair Avenue and, eventually, to Glen Avenue in Cleveland. Officer
Smith testified:
And the driver of the vehicle began to stand on the frame of the
door, of the door window. The window frame of the driver’s door.
And was standing up on it for just a few seconds, traveling about
35, 40 miles per hour. And then the driver jumped out of the car
and did a couple flips and landed in the grass on the side of the
road. And the driverless vehicle continued to go forward through
an intersection, ran over a postal service mailbox, and smashed
into a handicap ramp at somebody’s residence in front of their
house, and came to a stop on the side of the house.
{¶11} Officer Smith arrested Martin at the scene. The minivan had been
purchased that same day by Jackie Martin, whom Martin claimed was his mother.1
{¶12} Officer Randy Veri of the Wickliffe Police Department assisted Officer
Smith in the pursuit of Martin and corroborated his identification of Martin as the driver
of the minivan.
1. The incident described as occurring on October 7, 2015, forms the basis of Count 1 (Failure to
Comply). The remaining charges (Counts 2 through 11) are based on events occurring on June 1, 2016,
described hereafter.
4
{¶13} Officer David Cook of the Wickliffe Police Department participated in the
pursuit of Martin on October 7. Cook identified the make of the minivan as a Buick and
its vehicle identification number (VIN) as 5GADV23L35D200652.
{¶14} Kyle Barnard was a resident of the Willo Vu Apartments in Eastlake on
June 1, 2016. At approximately 11:30 that evening, he noticed a silver Cadillac parked
outside his apartment occupied by an elderly gentleman (“late 40’s, early 50’s”) and a
younger blond woman. About five minutes later, a red vehicle arrived, and the woman
left the Cadillac and entered and exited the red vehicle. Suspicious about the activity,
Barnard contacted the police.
{¶15} Officer Paul Stanley of the Eastlake Police Department testified that, on
June 1, 2016, he responded to a report of a suspicious vehicle at the back of the Willo
Vu Apartments. Stanley had exited his police cruiser when the sound of a maroon-
colored minivan starting drew his attention. Stanley approached the driver’s side door
as the minivan drove in reverse. He smacked the rear door a couple of times and told
the driver to stop. The driver, identified as Martin, turned his head, made eye contact
with the officer, and gestured for the officer to wait a moment. Martin put the minivan in
drive and drove around the back of the apartment building, through a narrow yard area
bordered by a chain link fence separating the Willo Vu apartments from an adjoining
apartment complex (Spring Crest Apartments in Willowick).
{¶16} Officer Stanley lost sight of Martin and returned to his cruiser. After
searching Vine Street and the adjoining apartment complex, Stanley returned to Willo
Vu and found Martin on foot crossing the parking lot. With the assistance of another
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officer, he was able to place Martin under arrest. A search of Martin’s person yielded “a
small straw wrapper sized piece of plastic with a white powder inside.”
{¶17} Patrolman Richard Isabella of the Eastlake Police Department responded
to a report of a suspicious vehicle in flight at the Willo Vu apartments. He located the
abandoned minivan crashed into the fence behind the apartment buildings. The driver’s
door was open, and the passenger side of the vehicle was wedged against the fence.
On the driver’s seat, Isabella found a Glock handgun and a black bag or pouch
containing crack cocaine. On the ground near the door, he found a cell phone.
{¶18} Patrolman Isabella then heard the sound of horns coming from the
apartment complex on the other side of the fence. At this time, “a young black male
wearing a white t-shirt,” identified as Martin, “jumped on top of the fence,” making eye
contact with Isabella. Martin asked whose minivan that was, and Isabella replied,
“yours.” Martin jumped down and ran around the apartment buildings. Isabella pursued
on foot until Martin was apprehended as described by Officer Stanley. Isabella seized
two hundred and three dollars plus change from Martin’s person.
{¶19} Officer Kenneth Roberts of the Eastlake Police Department arrived at the
Willo Vu Apartments on the night of June 1, 2016, as Officer Stanley was ordering the
driver of the maroon minivan to stop. Roberts described the driver as a “black male …
wearing a white t-shirt” and identified him as Martin. When Martin began his flight by
driving the minivan back around the apartment buildings and then south towards Vine
Street, Roberts drove back to the apartments’ entrance to anticipate Martin’s arrival.
However, he received a dispatch that the minivan had crashed into the fence separating
the Willo Vu Apartments from the Spring Crest Apartments.
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{¶20} Officer Roberts located the minivan with the driver’s door ajar and the
Glock, cell phone, and “a little black change type purse” as described by Patrolman
Isabella. The purse contained crack cocaine, heroin, Suboxone, twelve Vicodin pills,
and two Narcan pills. He then heard Isabella yelling for somebody to stop and saw
Martin jump the fence and run around the apartment buildings before being taken into
custody.
{¶21} A subsequent search of the minivan produced the following additional
items: a baggie with marijuana in the driver’s door handle; a baggie with a brown
substance on the driver’s floor board; latex gloves; syringes; a police scanner; and a red
backpack containing a PTAC rifle in two pieces, two magazines for the rifle and two
magazines for the Glock; and a .40 caliber Perfecta shell casing.
{¶22} Officer Roberts determined that the minivan was owned by Martin’s
mother and had the VIN number 5GADV23L35D200652.
{¶23} Dr. Karen Zavarella, a forensic analyst at the Lake County Crime
Laboratory, performed DNA analysis on samples taken from the minivan, the Glock, and
the PTAC rifle. The minivan contained DNA from two contributors with an exceedingly
high probability that Martin was one of the contributors and the most abundant
contributor.2 Similarly, the Glock contained DNA from three contributors with a very
high probability of Martin being one of the contributors as well as the most abundant
contributor.3 The results of the analysis of the PTAC rifle were inconclusive.
2. For the minivan, it was four trillion times more likely that Martin was one of the contributors than if the
sample derived from two unknown contributors.
3. For the Glock, it was thirteen billion times more likely that Martin was one of the contributors than if the
sample derived from three unknown contributors.
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{¶24} Kimberly Gilson, a forensic analyst at the Lake County Crime Laboratory,
performed controlled substance analysis on various substances recovered from Martin’s
person and the minivan. The white powder recovered from Martin’s person was
identified as 0.12 grams of N-ethylpentylone (Schedule I). The marijuana found in the
driver’s side door of the minivan was confirmed to be marijuana (Schedule I) in the
amount of 2.36 grams. The substances in the black purse were identified as: 7.62
grams of pyrilamine, acetaminophen, and caffeine; 1.21 grams of heroin (Schedule I);
5.11 grams of hydrocodone and acetaminophen (Schedule II); 0.79 grams of
buprenorphine and naloxone (Schedule III); and 0.06 grams of buprenorphine and
naloxone (Schedule III). The baggie from the floor board contained 1.03 grams of
heroin (Schedule I) and fentanyl (Schedule II).
{¶25} Raymond Jorz, a forensic analyst at the Lake County Crime Laboratory,
performed fingerprint and firearm analyses on samples and evidence recovered from
the minivan. Four prints were able to be taken from the minivan and, of these four,
three were identified as belonging to Martin and the fourth to an unidentified individual.
Jorz determined that both the Glock and PTAC rifle were operable firearms.
{¶26} Detective Theodore Kroczak testified that he took a buccal swab from
Martin.
{¶27} The jury returned the following verdicts: “guilty” of two counts of Failure to
Comply with Order or Signal of Police Officer (Counts 1 and 2), two counts of Having
Weapons while Under Disability (Counts 3 and 4), Improperly Handling Firearms in a
Motor Vehicle (Count 5), fourth-degree Possession of Heroin (Count 6), three counts of
Aggravated Possession of Drugs (Counts 7, 10, and 11); and “not guilty” of two counts
8
of Possessing Criminal Tools (Counts 8 and 9). The jury made the further finding that
Martin “had a firearm on or about his person or under his control” during the commission
of the Possession offenses (Counts 6, 7, 10, and 11) and one of the Failure to Comply
offenses (Count 2).
{¶28} On December 21, 2016, a sentencing hearing was held. The trial court
merged Count 4 with Count 3 and merged the Firearm Specifications in Counts 7, 10,
and 11 with the Specification for Count 6. The court sentenced Martin to serve one year
in prison for each Firearm Specification to be served consecutively with each other and
his sentence for the other charges. The court sentenced Martin to a consecutive thirty-
six month prison sentence for Count 1 (Failure to Comply), consecutive twelve month
prison sentences for Counts 2 (Failure to Comply) and 3 (Having Weapons while Under
Disability), a concurrent twelve-month prison sentence for Count 5 (Improperly Handling
Firearms), and eight month prison sentences for Counts 6, 7, 10, and 11 (Possession)
to be served concurrently with each other but consecutively to the other sentences.
Thus, Martin received an aggregate prison sentence of seven years and eight months.
The court further suspended Martin’s driver’s license for life, ordered the forfeiture of
seized items, ordered Martin to pay court costs and the costs of prosecution, and
advised Martin that he could be subject to three years of post-release control.
{¶29} On December 30, 2016, Martin’s sentence was memorialized in a
Judgment Entry of Sentence.
{¶30} On January 12, 2017, Martin filed a Notice of Appeal from Lake County
C.P. No. 16 CR 000593 (App. No. 2017-L-005). Relative to this appeal, Martin raises
the following assignments of error:
9
{¶31} “[1.] The trial court erred when it did not permit Martin to plead guilty to
count one, failure to comply, and permitted the jury to hear evidence on that charge.”
{¶32} “[2.] The trial court erred when it did not grant Martin’s motion to disqualify
appointed counsel, filed on October 11, 2016.”
{¶33} “[3.] The trial court committed plain error when it did not sever count one
of the indictment in case no. 16 CR 000593 from the remaining counts.”
{¶34} “[6.] In Case No. 16 CR 000593, the jury verdicts were against the
manifest weight of the evidence because Martin was not identified as the perpetrator.”
{¶35} “[7.] In Case No. 16 CR 000593, the evidence was insufficient because
Martin was not identified as the perpetrator in counts 2-11.”
{¶36} In the first assignment of error, Martin argues the trial court erred by
prohibiting him from pleading guilty to Count 1, Failure to Comply based on the events
of October 7, 2015.
{¶37} On the day of trial, before jury selection, Martin indicated that he wished to
plead guilty to Count 1. The matter was considered in chambers. Following jury
selection, Martin’s offer to plead was put on the record. The State responded that it was
“not even made aware that the Defendant wished to plead guilty to Count 1 until the jury
had been sitting out in the hallway for almost an hour, and the State is intending to use
the evidence of Count 1, would have been able to use [it] even if he did plead guilty,
based on motive, intent, lack of mistake.”
{¶38} The trial court denied the motion, concurring with the State that the
evidence for Count 1 would have been admissible to show “motive, opportunity,
identification, absence of mistake, and such.” The court further cited “fairness to the
10
jurors” and “judicial economy,” noting that a plea could have been accomplished prior to
the day of trial and the start of trial was behind schedule. Finally, the court asserted that
Martin did not “have a right to plead guilty.”
{¶39} The trial court is correct that “[t]here is, of course, no absolute right to
have a guilty plea accepted,” and “[a] court may reject a plea in exercise of sound
judicial discretion.” Santobello v. New York, 404 U.S. 257, 262,
92 S.Ct. 495,
30 L.E.2d
427 (1971). Martin contends the rejection of his plea constitutes an abuse of discretion
because the evidence for Count 1 would not have been admissible as other acts
evidence under Evidence Rule 404(B) in his prosecution for the remaining Counts.
{¶40} “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.” Evid.R.
404(B); State v. Allen, 73 Ohio St.3d 626, 632,
653 N.E.2d 675 (1995) (“Evid.R.
404(B) allows ‘other acts’ evidence as proof of identity”). For example, the fact that the
defendant had previously stolen a Glock pistol was admissible in a subsequent murder
prosecution involving the same pistol “as proof of identity in that it clearly helped link
[the defendant] to the gun found in his possession when he was arrested.” State v.
Brown,
100 Ohio St.3d 51,
2003-Ohio-5059,
796 N.E.2d 506, ¶ 24.
{¶41} Here, the evidence of the October 7, 2015 incident was probative of
Martin’s involvement in the June 1, 2016 incident in that it established Martin’s identity
as the operator of a vehicle of which he was not the owner. Moreover, evidence of the
prior incident is evidence of a certain modus operandi in that it demonstrates the
11
recklessness Martin has exhibited when fleeing from police. State v. Lowe, 69 Ohio
St.3d 527, 531,
634 N.E.2d 616 (1994) (“[a] certain modus operandi is admissible not
because it labels a defendant as a criminal, but because it provides a behavioral
fingerprint which, when compared to the behavioral fingerprints associated with the
crime in question, can be used to identify the defendant as the perpetrator”).
{¶42} Martin contends that the State would not have been able to use the
evidence of the October 7, 2015 incident because it “never provided any notice of intent
to use 404(B) evidence” as required by the Rule. Evid.R. 404(B) (“the proponent of
evidence to be offered under this rule shall provide reasonable notice in advance of
trial”). The argument has no merit. The State was not actually proffering the evidence
related to the October 7, 2015 incident as other acts evidence but as substantive
evidence of Martin’s guilt for the charges related to that incident. Consideration of its
admissibility as other acts evidence was hypothetical and only relevant in respect to
whether Martin should have been allowed to plead guilty to Count 1.
{¶43} We find no abuse of discretion in the trial court’s refusal to allow Martin to
plead in light of the circumstances relied upon by the court: Martin made his offer on the
day trial was to begin despite having the opportunity to do so earlier; the State was
unaware that Martin desired to plead and opposed accepting the plea; and the evidence
supporting the charge to which Martin desired to plead would have been admissible in
the trial of the remaining charges. Martin was offered nothing in consideration for his
plea and would not have gained any advantage at trial by having pled. The only
practical result of allowing Martin to plead to Count 1 would have been further delay in
the proceedings.
12
{¶44} The first assignment of error is without merit.
{¶45} Related to Martin’s first assignment of error is his argument under the third
assignment that the trial court committed plain error by not severing Count 1 from the
remaining Counts in the Indictment.
{¶46} The joinder of multiple offenses in a single indictment is favored by law
and is provided for by Criminal Rule 8. State v. Thomas, 61 Ohio St.2d 223, 225,
400
N.E.2d 401 (1980) (“[j]oinder conserves judicial and prosecutorial time, lessens the not
inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and
minimizes the possibility of incongruous results in successive trials before different
juries”). “If it appears that a defendant or the state is prejudiced by a joinder of offenses
or of defendants in an indictment, information, or complaint, or by such joinder for trial
together of indictments, informations or complaints, the court shall order an election or
separate trial of counts, grant a severance of defendants, or provide such other relief as
justice requires.” Crim.R. 14.
{¶47} The defendant “has the burden of affirmatively showing that his rights
were prejudiced” by the joinder of offenses. State v. Torres, 66 Ohio St.2d 340,
421
N.E.2d 1288 (1981), syllabus. The State may refute a claim of prejudice by showing
that “one offense could have been introduced under Evid.R. 404(B) at the trial of the
other offense,” and/or “that evidence of each of the crimes joined at trial is simple and
direct.” (Citation omitted.) State v. Brinkley,
105 Ohio St.3d 231,
2005-Ohio-1507,
824
N.E.2d 959, ¶ 30.
{¶48} Typically, a court’s refusal to separate charges for trial is reviewed under
an abuse of discretion standard. Torres at 343. Here, the standard of review is plain
13
error inasmuch as Martin did not seek severance or otherwise object to the joinder.
State v. Gordon, 152 Ohio St.3d 528,
2018-Ohio-259,
98 N.E.3d 251, ¶ 22. “To
successfully assert that a trial court committed plain error, a defendant must show an
error that constitutes an obvious defect in the trial proceedings and demonstrate that the
error affected the outcome of the trial.” Id. at ¶ 23.
{¶49} Martin’s claim of prejudice with respect to joinder is the same that he
raised with respect to offering to plead to Count 1:
Martin indicated before trial that he wanted to plead guilty to Count
One of the indictment. The trial judge denied this request,
indicating that the jury was waiting. At that point, the trial judge
should have ordered that the remaining counts be tried separately
from Count One. The State admitted that the purpose of trying
Count One, despite Martin’s offer to plead guilty, was to bolster the
charges in the remaining counts. As a result, Martin was convicted
of everything, and faced lengthy, and consecutive prison terms.
The trial court should have recognized the inherent unfairness in
this situation and granted him a separate trial on Count One.
Appellant’s brief at 31.
{¶50} Assuming, arguendo, that Martin advances a colorable claim of prejudice,
the claim is effectively refuted by the facts that the evidence of the October 7, 2015 and
June 1, 2016 incidents are simple and direct and, as demonstrated by the preceding
assignment of error, the evidence of the October 7, 2015 incident would have been
admissible as other acts evidence in a trial of the June 1, 2016 incident. In State v.
Jackson, 11th Dist. Lake No. 2017-L-140, 2018-Ohio-3241, this court affirmed a single
prosecution for separate robberies where “the perpetrator drove the same or a similar
vehicle” and there were other “similarities in the way the crimes were committed”:
“Evidence of either robbery would have been admissible at a trial on the other under
14
Evid.R. 404(B) since the ‘other act’ tended to establish a similar plan as well as the
perpetrator’s identity.” Id. at ¶ 25.
{¶51} It should also be noted that the standard for the admissibility of “other
acts” evidence is “stricter” than the standard for the joinder offenses. State v. Lott, 51
Ohio St.3d 160, 163,
555 N.E.2d 293 (1990). However, “when simple and direct
evidence exists, an accused is not prejudiced by joinder regardless of the
nonadmissibility of evidence of these crimes as ‘other acts’ under Evid.R. 404(B).”
Id.
Thus, even if the evidence of the October 7, 2015 incident were inadmissible in a
separate trial of the charges arising from the June 1, 2016 incident, joinder would still be
proper given the simple and direct nature of the evidence regarding the two incidents.
State v. Stoutamire, 11th Dist. Trumbull No. 2007-T-0089,
2008-Ohio-2916, ¶ 55
(joinder of offenses was not improper where “the state presented witnesses and
evidence chronologically according to the dates of the incidents”).
{¶52} The third assignment of error is without merit.
{¶53} In his second assignment of error, Martin contends the trial court erred
when it denied his Motion to Disqualify Counsel in light of the “irreconcilable differences
between counsel and Martin.”
{¶54} On October 11, 2016, the trial court held a hearing on Martin’s Motion to
Disqualify Counsel. Martin complained that appointed counsel was not diligently
advocating on his behalf:
I feel as though my appointed attorney feels that I have no chance
at trial, and I feel like it’s not even the fact he feels I have no
chance, but I feel like he doesn’t want to … even put his effort into
representing me, because I got a lot going on. I brought him plenty
of good arguments, and I did a lot of research on my own case on
my own behalf, and he shoots down everything I say. Everything
15
that I bring him he tells me that it’s either erroneous or frivolous. …
* I don’t want to represent myself, but I’m saying I got a good
chance at trial with my case.
{¶55} Martin cited further instances where he felt counsel disregarded his
wishes regarding the presentation of his defense: he believed the evidence was legally
insufficient to support the charge of Failure to Comply arising from the June 1, 2016
incident; he wanted to sever Count 1 of the Indictment arising from the October 7, 2015
incident; with respect to Lake County C.P. No. 16 CR 000633 (discussed infra), he
wanted phone records subpoenaed and a private investigator hired to build a case
against his cousin as the actual perpetrator; he did not believe the State had provided
full and complete discovery; he did not wish to entertain the plea bargain counsel urged
him to accept; and trial counsel had previously represented a woman who was a
potential witness against him.
{¶56} At the November 1, 2016, pretrial, Martin represented that his family was
retaining private counsel to represent him and that he refused to communicate with
appointed counsel. The trial court contacted the attorney whom Martin indicated his
family was seeking to retain and he advised the court he had represented Martin in prior
cases and had spoken with his family regarding the pending charges. However, the
attorney stated that he had not been retained or even contacted by Martin’s family for
over ten days and he did not anticipate being retained.
{¶57} A trial court’s decision denying a request for new or substitute counsel “is
reviewed under an abuse-of-discretion standard.” State v. Cowans, 87 Ohio St.3d 68,
73,
717 N.E.2d 298 (1999); State v. Burrell, 11th Dist. Lake No. 2013-L-024, 2014-Ohio-
1356, ¶ 21.
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{¶58} “Where, during the course of his trial for a serious crime, an indigent
accused questions the effectiveness and adequacy of assigned counsel …, it is the
duty of the trial judge to inquire into the complaint and make such inquiry a part of the
record.” State v. Deal, 17 Ohio St.2d 17,
244 N.E.2d 742 (1969), syllabus. “The trial
judge may then require the trial to proceed with assigned counsel participating if the
complaint is not substantiated or is unreasonable.”
Id.
{¶59} Before a defendant is entitled to the discharge of appointed counsel, “the
defendant must show a breakdown in the attorney-client relationship of such magnitude
as to jeopardize the defendant’s right to effective assistance of counsel.” State v.
Coleman, 37 Ohio St.3d 286,
525 N.E.2d 792 (1988), paragraph four of the syllabus.
An indigent defendant’s right to counsel, however, does not encompass counsel of his
or her choice nor does it guarantee a “meaningful relationship” or a “rapport” between
the defendant and counsel. State v. Murphy,
91 Ohio St.3d 516, 523,
747 N.E.2d 765
(2001); State v. Henness,
79 Ohio St.3d 53, 65,
679 N.E.2d 686 (1997). “Accordingly,
the existence of hostility or a personal conflict between the attorney and the defendant
does not constitute a total breakdown so long as it does not inhibit the attorney from
both preparing and presenting a competent defense.” (Citation omitted.) State v. Long,
2014-Ohio-4416,
19 N.E.3d 981, ¶ 35 (11th Dist.).
{¶60} Martin maintains that “it was clear that [he] and his attorney had reached a
point in their relationship where they were no longer speaking to each other about the
evidence or formulating a defense together.” Appellant’s brief at 27. We disagree.
Nowhere in the course of the October 11, 2016 hearing is it apparent that Martin’s and
appointed counsel’s conflicting views as to how the defense should be conducted
17
inhibited or compromised counsel’s ability to present a defense. State v. Ketterer, 111
Ohio St.3d 70,
2006-Ohio-5283,
855 N.E.2d 48, ¶ 150 (“[d]isagreement[s] between the
attorney and client over trial tactics or approach also do not warrant a substitution of
counsel”) (citation omitted). At this point, the charges had been pending for three
months and trial was scheduled in less than a month. Martin and appointed counsel
had been communicating to this point and counsel demonstrated an understanding of
the positions Martin was advocating. Martin’s subsequent refusal to communicate with
his attorney over the issue of what clothing to wear at trial did not materially impact trial
strategy and appears to have been motivated by Martin’s mistaken belief that his family
was in the process of retaining new counsel.
{¶61} We further note that Martin failed to substantiate the need for a private
investigator. Although he presented his cousin as the actual perpetrator of the crimes
charged in Lake County C.P. No. 16 CR 000633, Martin conceded that he only
suspected his cousin’s involvement, did not know if his cousin would be willing to accept
responsibility for the crimes, and “he [his cousin] didn’t admit exactly on the phone that
he did it.” If Martin could substantiate the allegations against his cousin, a colorable
claim of ineffective assistance could possibly be raised. The mere fact of the
allegations, however, does not entitle Martin to substitute counsel. Compare Long at ¶
34 (“the courts of this state have recognized three examples of good cause which would
warrant the discharge of court-appointed counsel: (1) a conflict of interest; (2) a
complete breakdown of communication; and (3) an irreconcilable conflict which could
cause an apparent unjust result”) (citation omitted).
{¶62} The second assignment of error is without merit.
18
{¶63} In his sixth and seventh assignments of error, Martin challenges the
sufficiency and manifest weight of the evidence with respect to his identification as the
perpetrator of the crimes occurring on June 1, 2016 (Counts 2 to 11).
{¶64} The manifest weight of the evidence and the sufficiency of the evidence
are distinct legal concepts. State v. Elmore, 111 Ohio St.3d 515,
2006-Ohio-6207,
857
N.E.2d 547, ¶ 44. With respect to the sufficiency of the evidence, “[t]he 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,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991),
paragraph two of the syllabus, following Jackson v. Virginia,
443 U.S. 307,
99 S.Ct.
2781,
61 L.Ed.2d 560 (1979).
{¶65} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, … weight of
the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113
Ohio St.3d 382,
2007-Ohio-2202,
865 N.E.2d 1264, ¶ 25, citing State v. Thompkins,
78
Ohio St.3d 380, 386-387,
678 N.E.2d 541 (1997). “In other words, a reviewing court
asks whose evidence is more persuasive -- the state’s or the defendant’s?”
Id. An
appellate court considering whether a verdict is against the manifest weight of the
evidence must consider all the evidence in the record, the reasonable inferences, the
credibility of the witnesses, and 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.”
Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
19
{¶66} With respect to the sufficiency of the evidence, Officers Stanley and
Roberts both positively identified Martin as the operator of the maroon minivan. Their
identifications constitute legally sufficient evidence that Martin was in fact the
perpetrator of the crimes on June 1, 2016.
{¶67} With respect to the manifest weight of evidence, the identification of Martin
as the operator of the minivan was corroborated by Martin’s apprehension at the scene
and the presence of his DNA on the minivan and the Glock. There was also evidence
that Martin was the only operator of the minivan, which he had used on October 7,
2015, in a reckless flight from the police, and had arrived alone at the Willo Vu
Apartments.
{¶68} Against this evidence it can be argued that Willo Vu resident, Barnard,
observed a young blond woman enter and exit the minivan. Barnard testified she was
carrying a cell phone when she entered the minivan and she exited the minivan just
before Officer Stanley gave the command to stop. Officer Stanley reported seeing “a
female reclined back in the passenger seat of the vehicle,” without being able to
describe the female. Officer Roberts did not notice any other occupants of the vehicle
except for Martin. No witnesses could testify as to what happened to the female and
the silver Cadillac after the arrival of the police. The presence of the female raises an
issue as to whether either the drugs or the guns in the minivan could have been hers.
The weight of the evidence does not support such an inference. The more likely
scenario (and the one consistent with the jury’s verdicts), is that the purpose of her
presence at Willo Vu Apartments was to purchase drugs from Martin.
{¶69} The sixth and seventh assignments of error are without merit.
20
Lake County C.P. No. 16 CR 000633
{¶70} On August 8, 2016, the Lake County Grand Jury indicted Martin for
Burglary (Count 1), a felony of the second degree in violation of R.C. 2911.12(A)(1);
Failure to Comply with Order or Signal of Police Officer (Count 2), a felony of the fourth
degree in violation of R.C. 2921.331(B); Receiving Stolen Property (Count 3), a felony
of the fourth degree in violation of R.C. 2913.51(A); Safecracking (Count 4), a felony of
the fourth degree in violation of R.C. 2911.31; Possessing Criminal Tools (Count 5), a
felony of the fifth degree in violation of R.C. 2923.24; Vandalism (Count 6), a felony of
the fifth degree in violation of R.C. 2909.05(A); and Vandalism (Count 7), a felony of the
fifth degree in violation of R.C. 2909.05(B)(1)(a).
{¶71} On August 12, 2016, Martin was arraigned and entered a plea of “Not
Guilty” to the charges in the Indictment.
{¶72} On November 28 and 29, 2016, a jury trial was held. Prior to trial, the
State dismissed Counts 2 (Failure to Comply), 3 (Receiving Stolen Property), and 7
(Vandalism). The remaining counts were renumbered Count 1 through 4. The State
further amended Count 4 (Vandalism – Count 6 of the Indictment) to delete “[t]he value
of said property or the amount of physical harm is less than $5,000.00.”
{¶73} The following testimony was presented on behalf of the State:
{¶74} Geraldine Mastroberti testified that, on March 13, 2016, she arrived at the
Shoregate Sunoco gas station/mini mart on Lakeshore Boulevard in Willowick to open
the store. Shortly after her arrival, a vehicle backed into the store through two large
windows (a converted garage bay). A man exited the vehicle and began to put a chain
around an ATM machine located in the store. The man was dressed in black with a
21
hoodie and gloves. Mastroberti exited the store to call the police and heard the driver of
the vehicle say, “hurry up, we gotta get out of here.” She went to her car and called the
police. She saw the vehicle exit westbound on Lakeshore as police arrived and began
pursuit.
{¶75} Sergeant Robert Prochazka of the Willowick Police Department
responded to a report of a break-in in progress at the Sunoco on Lakeshore at about
6:00 a.m. on March 13, 2016. Driving westbound on Lakeshore, Prochazka observed a
dark-colored van with one functioning taillight, the passenger side door ajar, and the
rear hatch “smashed up.” The van made a sharp turn southbound on Lloyd Road and
began to accelerate. From Lloyd the van turned onto Forestview and entered a Euclid
housing development.
{¶76} The van came to a stop in the front yard of a residence on Sycamore
Drive. The driver and occupant of the van fled on foot behind the residence. Sergeant
Prochazka examined the van and noted that the steering column and ignition tumbler
had been removed. After contacting the owner of the van, it was determined that it had
been stolen some time since the previous evening.
{¶77} The video from Sergeant Prochazka’s dashcam was played for the jury.
In the video, two individuals can be seen exiting the van and fleeing through a gate
behind the residence. The driver can be seen wearing a grey hoodie. The passenger
can be seen wearing a dark jacket, alternatively described as black and purple.
{¶78} Patrolman Brian Kravos of the Willowick Police Department participated in
the pursuit of the fleeing van and of the suspects on foot thereafter. Kravos followed a
trail left by the suspects of “various fences that had clearly been smashed down from
22
somebody going over them” and “a couple of gates that were actually either open or
broken.” In a yard on Willow Drive, Kravos found a “dark purple jacket” and “black t-
shirt” in close proximity to each other. He noted that the clothing was dry despite the
fact it had been raining.
{¶79} Patrolman Steven Fellinger of the Willowick Police Department processed
the van involved in the incident, a maroon Plymouth Voyager, collecting fingerprints and
DNA samples. Items collected from the van included: a backpack with a white t-shirt
and a pair of tennis shoes, a six and a half foot length of cable, a roll of green wire, a
paving brick, a tan Intech bag, a box with shotgun shells, and glass shards from the
driver’s side floor board, passenger side floor board, and the rear cargo area of the
vehicle.
{¶80} Detective Gregory Spakes processed the crime scene at the Sunoco,
collecting fingerprints and DNA samples from the scene as well as the van.
{¶81} Michael Rajko, the owner of the Sunoco, testified that the cost of repairing
the mini mart was fourteen thousand dollars.
{¶82} Leanne Suchanek, an assistant laboratory director for the Lake County
Crime Lab, performed DNA analysis on the jacket and t-shirt found on Willow Drive as
well as items collected from the van. The jacket yielded a DNA profile that was a
mixture of at least four people and the t-shirt yielded a DNA profile that consisted of at
least two contributors. For each item there was an exceedingly high probability of
Martin being one of the contributors.4 Both the jacket and the t-shirt had a common
majority contributor, i.e., a contributor who yielded a higher amount of DNA than the
4. For the jacket, it was 961 billion times more likely that Martin was one of the contributors than if the
mixture derived from four unknown contributors. For the t-shirt, it was 47.8 quadrillion times more likely
that Martin was one of the contributors than if the mixture derived from two unknown contributors.
23
other contributors. Suchanek identified Martin as the majority contributor to both items.
With respect to the t-shirt, “there was such a small amount of minor contributor DNA …
* that [it] would never be able to make any kind of comparison to any individual.”
{¶83} DNA samples taken from the interior of the van indicated three
contributors but excluded Martin as well as the owner of the van. A DNA sample taken
from a chain and cable recovered from the van revealed at least two contributors but
excluded Martin as well as the owner of the van. Two cigarette butts taken from the van
were analyzed and revealed a single DNA profile of which Martin was excluded from
being the source.
{¶84} The jury returned “guilty” verdicts to all charges.
{¶85} On December 21, 2016, a sentencing hearing was held. The trial court
merged Count 4 (Vandalism) with Count 1 (Burglary). The court sentenced Martin to
serve five years in prison for Count 1 (Burglary), twelve months in prison for Count 2
(Safecracking), and twelve months in prison for Count 3 (Possessing Criminal Tools).
The court ordered the sentences to be served concurrently with each other but
consecutively with the sentence imposed in Lake County C.P. No. 16 CR 000593.
Between the two cases, Martin received an aggregate prison sentence of twelve years
and eight months. The court advised Martin that post-release control was mandatory
for three years and ordered him to pay court costs and costs of prosecution.
{¶86} On January 12, 2017, Martin filed a Notice of Appeal from Lake County
C.P. No. 16 CR 000633 (App. No. 2017-L-006). Relative to this appeal, Martin raises
the following assignments of error:
24
{¶87} “[4.] In Case No. 16 [CR] 000633, the jury verdicts were against the
manifest weight of the evidence because Martin was not identified as the perpetrator.”
{¶88} “[5.] In Case No. 16 CR 000633, the evidence was insufficient because
Martin was not identified as the perpetrator.”
{¶89} In these assignments of error, Martin contends that his convictions were
against the manifest weight of the evidence and/or unsupported by sufficient evidence
because “Martin was never identified as either the driver or the man putting the chain
around the ATM.” Moreover, “[t]he jury lost its way when it put undue weight on the
DNA found on the jacket and tee shirt, especially considering that there were other
contributors of DNA to those items.” Appellant’s brief at 34.
{¶90} The standards for reviewing the sufficiency of the evidence and the
manifest weight of the evidence have been set forth above as part of our analysis of the
sixth and seventh assignments of error. Since Martin’s convictions in the present case
rest on circumstantial evidence, we note:
Circumstantial evidence and direct evidence inherently possess the
same probative value and therefore should be subjected to the
same standard of proof. When the state relies on circumstantial
evidence to prove an essential element of the offense charged,
there is no need for such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.
Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492, at paragraph two of the syllabus
{¶91} The determinative issue with respect to Lake County C.P. No. 16 CR
000633 is the sufficiency of the evidence. There is little uncertainty or doubt as to
Mastroberti’s testimony, the content of the dashcam video, or the results of the DNA
analysis.
25
{¶92} Mastroberti described the person who placed the chain around the ATM
as wearing dark clothing and gloves. Her testimony also identifies him as a passenger
in the van. The passenger exiting the van in the video matches Mastroberti’s
description, in particular by the dark jacket worn by the passenger. Although the
passenger cannot be identified from the video, his general appearance is not
inconsistent with Martin’s appearance. The DNA evidence overwhelmingly connects
Martin with the jacket and the shirt recovered from the scene and thus is sufficient to
identify him as the passenger in the van. Samples from the shirt were taken from the
neck and armpits. Of two possible contributors, Martin was the majority contributor and
so little of the minority contributor’s DNA was present that there was no realistic
possibility of ever identifying the minority contributor. The only reasonable inference is
that Martin was wearing both the shirt and jacket, although the DNA evidence cannot
determine this conclusively.
{¶93} Such evidence has often been held sufficient to support convictions:
DNA evidence identifying a defendant as a major contributor to the
DNA profile found on an object linked to a crime is sufficient
evidence to sustain a conviction. [State v.] Brown[, 8th Dist.
Cuyahoga No. 98881, 2013-Ohio-2690,] ¶ 31, 35 (concluding that
Brown’s convictions were based on sufficient evidence because his
DNA profile was the major contributor to the DNA profile discovered
on a shirt connected to the crimes even though the DNA profile on
the shirt also revealed the DNA of unidentified minor
contributors); State v. Crabtree, 9th Dist. Summit No. 24946, 2010-
Ohio-2073, ¶ 17, 19 (concluding that a rational trier of fact could
have concluded that Crabtree committed the crimes because his
DNA was consistent as the major contributor to the DNA profile
discovered on a gun that was connected to the crimes); State v.
Bridgeman, 2d Dist. Champaign No. 2010 CA 16, 2011-Ohio-2680,
¶ 16, 18 (concluding that a reasonable trier of fact could have
concluded that Bridgeman committed the bank robbery because
DNA testing of a ski mask and glove connected to the robbery
revealed Bridgeman as the major contributor to the DNA profile
26
discovered on the glove and the ski mask). See also State v.
Johnson, 5th Dist. Stark No. 2012 CA 00054, 2012-Ohio-5621, ¶
25 (concluding that “the jury could have concluded that [Johnson]
and his cohort invaded the home” because Johnson’s DNA was
discovered on a hat that the victim identified as the hat “worn by the
man who held the gun to his head”).
State v. Eckard, 3d Dist. Marion No. 9-15-45, 2016-Ohio-5174, ¶ 33.
{¶94} The fourth and fifth assignments of error are without merit.
{¶95} For the foregoing reasons, Martin’s convictions in Lake County C.P. No.
16 CR 000593 and Lake County C.P. No. 16 CR 000633 are affirmed. Costs to be
taxed against the appellant.
THOMAS R. WRIGHT, P.J., concurs with a Concurring Opinion,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
__________________________________
THOMAS R. WRIGHT, P.J., concurs with a Concurring Opinion.
{¶96} Under the first assignment, I do not decide whether evidence regarding
the October 2015 chase is admissible under Evid.R. 404(B) for purposes of establishing
Martin’s guilt in the June 2016 fleeing incident as there are independent reasons to
affirm.
{¶97} Under the fourth assignment, the lead opinion does not expressly decide
Martin’s manifest weight argument. I conclude for the reasons stated in the lead opinion
27
that the conviction is both supported by sufficient evidence and is not against the
manifest weight of the evidence.
__________________________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶98} I respectfully dissent.
{¶99} It is this writer’s position that appellant’s first and third assignments of
error are interrelated and are dispositive of this appeal.
{¶100} Regarding his first assignment, it is within the sound discretion of the trial
court whether to accept or refuse a guilty plea. State v. Yates, 11th Dist. Ashtabula No.
2014-A-0044, 2015-Ohio-3087, ¶31, 37. Although a defendant has no constitutional
right to have a guilty plea accepted, the court’s discretion is not without limits. State v.
Caldwell, 8th Dist. Cuyahoga No. 99166,
2013-Ohio-5017, ¶10-11. The term “abuse of
discretion” is one of art, connoting judgment exercised by a court which neither
comports with reason, nor the record. State v. Ferranto,
112 Ohio St. 667, 676-678
(1925). An abuse of discretion may be found when the trial court “applies the wrong
legal standard, misapplies the correct legal standard, or relies on clearly erroneous
findings of fact.” Thomas v. Cleveland,
176 Ohio App.3d 401,
2008-Ohio-1720, ¶15
(8th Dist.).
{¶101} Regarding his third assignment, appellant did not file a motion to sever.
“Under Crim.R. 52(B), however, this court has the power to recognize plain error or
defects involving substantial rights even if they are not brought to the attention of the
28
trial court. State v. Moreland (1990), 50 Ohio St.3d 58, 62 (…).” ‘“In the context of a
criminal case, a court of review should invoke the plain error doctrine with the utmost
caution, under exceptional circumstances, and only to prevent a miscarriage of justice.
State v. Jenks (1991),
61 Ohio St.3d 259, 282 (…); State v. Long (1978),
53 Ohio
St.2d 91, (…), paragraph three of the syllabus; [State v.] Holley[, 11th Dist. Ashtabula
No. 98-A-0089,
1999 WL 1313667,] at 26 [(Dec. 17, 1999)]. Thus, plain error does not
exist unless, but for the error, the outcome of the proceeding would have been different.
Jenks at 282 (…);
Moreland at 62 (…); Long at paragraph two of the syllabus; Holley
at 26–27.”’” State v. Honzu, 11th Dist. Trumbull No. 2016-T-0056,
2017-Ohio-626, ¶52-
53.
{¶102} There are a few key factors in this case which would favor the trial court
holding a plea hearing. Crim.R. 11(C) requires a court to advise a defendant who
pleads guilty or no contest to a felony charge that he is waiving his right to a jury trial,
his right to confront witnesses, his right to have compulsory process for obtaining
witnesses, his right against self-incrimination, and his right to require the state to prove
his guilt beyond a reasonable doubt. See State v. Watkins, 99 Ohio St.3d 12, 2003-
Ohio-2419, ¶6.
{¶103} On the day of trial and before jury selection, defense counsel informed the
court that appellant wished to enter a guilty plea to count one, failure to comply with
order or signal of police officer, for the incident that occurred on October 7, 2015. The
state, which over-indicted appellant in this matter, indicated however that it would
present evidence relating to that count whether or not a plea was entered as Evid.R.
29
404(B) evidence. The court denied appellant’s request and stated the following on the
record:
{¶104} “Alright. As to the Defendant’s offer to plead guilty to Count 1, I heard
argument in chambers on that. The State would use all of the evidence pertaining to
Count 1 anyway, as other acts that would show motive, opportunity, identification,
absence of mistake, and such. Also, that could have been accomplished last week. I
had people in the courtroom. It takes 45 minutes to do a change of plea. The jurors
were waiting outside for an hour. Sheriff didn’t get the Defendant over until significantly
past 8:30, and I wasn’t going to encumber the jury’s, the juror’s time even more. As it
is, it’s 1 o’clock. We normally have jurors seated by noon. So in the interest of judicial
economy and the, in fairness to the jurors - - also, the Defendant doesn’t have a right to
plead guilty. He has a right to a fair trial. And I don’t see anything in the Constitution
that mandates that he plead guilty as charged.” (Case No. 2016 CR 000593, Jury Trial
T.p. 134-135).
{¶105} The facts and circumstances establish the trial court abused its discretion
in not accepting appellant’s plea as to count one. “[I]t is incumbent upon the Court to
discern the reasonableness of the Defendant’s decision to enter a plea of guilty under
the circumstances.” See State v. Franklin, 2d Dist. Greene No. 2004 CA 127, 2005-
Ohio-6832, ¶9. It is up to a defendant to enter a guilty plea of his own free will and
choice. See U.S. Constitution, Amendment Six; Crim.R. 11; State v. Ingram, 6th Dist.
Sandusky No. S-16-046, 2017-Ohio-5685, ¶12.
{¶106} This writer stresses that the count at issue, count one, was the only count
that occurred on October 7, 2015. The other counts stem from the incident that took
30
place eight months later on June 1, 2016. The state admitted that the purpose of
presenting evidence on count one was to prove motive, opportunity, lack of mistake,
intent, and identity. Thus, the state wanted to present the evidence occurring on
October 7, 2015 because the evidence would bolster the state’s case on the June 1,
2016 incident. The state, however, did not provide any notice of intent to use 404(B)
evidence.
{¶107} Evid.R. 404(B) states in part: “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. In criminal cases, the proponent of evidence to be offered under this rule shall
provide reasonable notice in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such evidence it intends to
introduce at trial.”
{¶108} Similarly, R.C. 2945.59 provides:
{¶109} “In 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.”
31
{¶110} “Evidence of other acts under R.C. 2945.59 and Evid.R. 404(B) is to be
construed against admissibility. … This is because ‘(t)he average individual is prone to
much more readily believe that a person is guilty of the crime charged if it is proved to
his satisfaction that the defendant has committed a similar crime.’ …” (Footnote
citations omitted.) State v. Burns, 11th Dist. Lake No. 2000-L-189, 2002-Ohio-3585,
¶16.
{¶111} “‘[C]ourts have long recognized the danger of admitting other-acts
evidence. In United States v. Phillips (1979), 599 F.2d 134, 136, the Sixth Circuit Court
of Appeals stated as follows: ‘Two concerns are expressed by the first sentence of
(Fed.R.Evid.) 404(b): (1) that the jury may convict a “bad man” who deserves to be
punished—not because he is guilty of the crime charged but because of his prior or
subsequent misdeeds; and (2) that the jury will infer that because the accused
committed other crimes, he probably committed the crime charged.’ As cautioned by
the Ohio Supreme Court in State v. Lowe (1994),
69 Ohio St.3d 527, …, ‘we therefore
must be careful (…) to recognize the distinction between evidence which shows that a
defendant is the type of person who might commit a particular crime and evidence
which shows that a defendant is the person who committed a particular crime.’
(Emphasis sic.)
Id. at 530. This danger is particularly high when the other acts are very
similar to the charged offense ….’” Lyndhurst v. Smith, 8th Dist. Cuyahoga No.
97045,
2012-Ohio-2920, ¶26, quoting State v. Williams,
195 Ohio App.3d 807, 2011-
Ohio-5650, ¶37-38 (8th Dist.) (en banc) (parallel citation omitted.)
32
{¶112} “In addition, other-acts evidence is subject to the limitations provided in
Evid.R. 402 and 403; therefore, the proffered evidence must be relevant and its
probative value must outweigh its potential for unfair prejudice.” Smith, supra, at ¶27.
{¶113} As this court stated in State v. Plevyak, 11th Dist. Trumbull No. 2013-T-
0051, 2014-Ohio-2889, ¶16-19:
{¶114} “The state asserted at oral argument that Evid.R. 404(B) does not require
notice to the defendant of these ‘other acts’ as they are inextricably interwoven with the
essential facts of the case. The state argued that these ‘other acts were blended;
essentially part and parcel of the crimes charged and therefore no notice was required.
We disagree.
{¶115} “Several of these ‘other acts’ involved acts that occurred weeks and
months apart from the crimes with which [the defendant] was charged. Under Evid.R.
404(B) other acts may be admissible to show the background of the crimes with which a
defendant is charged, or when the other acts are ‘“inextricably related” ‘to those crimes.
State v. Lowe, 69 Ohio St.3d 527, 531 …, quoting State v. Curry,
43 Ohio St.2d 66, 73
…(1975). That these ‘other acts’ are inextricably interwoven with the primary facts in
the case goes to the issue of their admissibility-not whether the state was required to
provide notice to the defendant under Evid.R. 404(B).
{¶116} “The state also averred at oral argument that open file discovery provided
[the defendant] with knowledge of the ‘other acts’ evidence and this was equivalent to
giving him notice of the state’s intent to use this evidence. Again, we disagree. There
is a difference between a defendant knowing the state possesses ‘other acts’ evidence
and a defendant knowing the state intends to use it at trial. A defendant’s decision to go
33
forward at trial may well depend on what evidence the state intends to introduce. If
providing discovery alone were sufficient to satisfy the notice requirements of Evid.R.
404(B) the rule would be superfluous. Statutes and rules are to be construed so as to
avoid such unreasonable or absurd results. State ex rel. Asti v. Ohio Dept. of Youth
Servs., 107 Ohio St.3d 262, …,
2005-Ohio-6432, ¶28.
{¶117} “The federal rule, upon which Evid.R. 404(B) is based, requires
reasonable notice of the general nature of these ‘other acts’ in order to prevent unfair
surprise. Lucas, supra. Whether notice is ‘reasonable’ will depend on the facts and
circumstances of each case.” (Parallel citations omitted.)
{¶118} In determining whether to permit other acts evidence to be admitted, trial
courts should conduct a three-step analysis set forth in State v. Williams, 134 Ohio
St.3d 521,
2012-Ohio-5695: “The first step is to 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. Evid.R. 401.
The next step is to consider whether 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). The third step is to consider whether the probative
value of the other acts evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R. 403.” Id. at ¶20.
{¶119} In the case at bar, the record establishes that appellant was prejudiced by
the state’s use of evidence against for which he was willing and desired to plead guilty.
This lead to a fundamentally unfair process where appellant was forced to have a jury
34
who heard acts occurring on October 7, 2015 during a trial for acts occurring eight
months later on June 1, 2016. The other acts evidence was not relevant and its
probative value was substantially outweighed by the danger of unfair prejudice.
Williams, supra, at ¶20. In light of the foregoing, this writer concludes appellant should
have been afforded a plea hearing and was denied a fair trial because of the admission
of prejudicial other acts evidence.
{¶120} In addition, as stated, count one, failure to comply with order or signal of
police officer, occurred on October 7, 2015. The remaining counts occurred on June 1,
2016, eight months later.
{¶121} Crim.R. 8(A), “Joinder of Offenses,” states:
{¶122} “Two or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the offenses charged,
whether felonies or misdemeanors or both, are of the same or similar character, or are
based on the same act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are part of a
course of criminal conduct.”
{¶123} Crim.R. 14, “Relief from prejudicial joinder,” provides in part:
{¶124} “If it appears that a defendant or the state is prejudiced by a joinder of
offenses or of defendants in an indictment, information, or complaint, or by such joinder
for trial together of indictments, informations or complaints, the court shall order an
election or separate trial of counts, grant a severance of defendants, or provide such
other relief as justice requires. …”
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{¶125} “Joinder is liberally permitted to conserve judicial resources, reduce the
chance of incongruous results in successive trials, and diminish inconvenience to the
witnesses.” State v. Schaim, 65 Ohio St.3d 51, 58 (1992). However, pursuant to
Crim.R. 14, it may be necessary to separate trials to prevent prejudice. State v.
Brinkley,
105 Ohio St.3d 231,
2005-Ohio-1507, ¶29.
{¶126} To prevail on a motion to sever, “the defendant has the burden of
demonstrating three facts. He must affirmatively demonstrate (1) that his rights were
prejudiced, (2) that at the time of the motion to sever he provided the trial court with
sufficient information so that it could weigh the considerations favoring joinder against
the defendant’s right to a fair trial, and (3) that given the information provided to the
court, it abused its discretion in refusing to separate the charges for trial.” Schaim,
supra, at 59.
{¶127} “‘[A] defendant who asserts that joinder is improper has the burden of
making an affirmative showing that his rights will be prejudiced thereby.’ State v.
Roberts, 62 Ohio St.2d 170, 175 …(1980). Prejudice is not demonstrated if the
offense in question would have been admissible as ‘other acts’ evidence under Evid.R.
404(B) or if the evidence of each crime joined at trial is simple and direct.” State v. Irby,
11th Dist. Trumbull No. 2015-T-0018,
2015-Ohio-5467, ¶89, citing
Schaim, supra, at 59.
(Parallel citation omitted.)
{¶128} Again, appellant indicated before trial his desire to plead guilty to count
one. The facts presented establish the trial court abused its discretion in not affording
appellant a plea hearing or permitting him to plead guilty. See Franklin, supra, at ¶9;
U.S. Constitution, Amendment Six; Crim.R. 11; Ingram, supra, at ¶12. This was the
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only count that occurred on October 7, 2015. The other counts stem from the incident
that took place on June 1, 2016.
{¶129} The trial court instead denied appellant’s request indicating that the jury
was waiting. The trial court should have ordered that the remaining counts be tried
separately from count one. The state admitted that the purpose of trying count one,
despite appellant’s offer to plead guilty, was to bolster the charges in the remaining
counts. As a result, appellant was convicted of everything and faced lengthy and
consecutive prison terms. The trial court should have permitted appellant to plead guilty
to count one, and/or should have recognized the inherent unfairness and prejudice to
appellant and granted him a separate trial on count one.
{¶130} This writer finds merit in appellant’s first and third assignments of error
and, thus, further finds his remaining assignments moot. App.R. 12(A)(1)(c).
{¶131} I respectfully dissent.
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