State v. Williams

[Cite as State v. Williams, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 113141
                 v.                                  :

GREGORY WILLIAMS,                                    :

                 Defendant-Appellant.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: October 24, 2024


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-22-676922-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Maalaea Newel, Assistant Prosecuting
                 Attorney, for appellee.

                 Cullen Sweeney, Cuyahoga County Public Defender, and
                 Noelle A. Powell, Assistant Public Defender, for appellant.


EMANUELLA D. GROVES, J.:

                   Defendant-appellant, Gregory Williams (“Williams”), appeals his

conviction for two counts of theft. For the reasons that follow, we affirm the

convictions.
              On November 5, 2022, Jason Jones (“Jones”) had just exited the

Dunkin Donuts drive-through in Euclid, Ohio, when he noticed an issue with his car.

He parked and ate his meal. Shortly thereafter he exited the car to look under the

hood. Jones has a classic car, which often draws attention, so he was not surprised

when a truck stopped and the driver, Williams, exited and admired the car. Jones,

who was renovating his house, noticed that Williams was wearing paint gear. He

told Williams he might have some work for him, so he asked for and received

Williams’ name and number. Jones had left his wallet on the passenger seat, which

held cash, as well as credit and debit cards (“bank cards”). Jones testified that he

had withdrawn $2,500 in cash from the bank and already had $200 in his wallet,

for a total of $2,700 cash. The State also had Jones identify a screen shot of what he

described as withdrawals from his bank account. Jones testified that between

October 14-31, 2022, he made five cash withdrawals in the amounts of $500,

$1,000, $2,000, $2,500 and $10,000, in no particular order.               On cross-

examination, Jones adjusted the amount of cash he had in the wallet, stating that he

knew he put at least $2,000 in the wallet in addition to the $200 that was already

there.

              Because it was a warm day, Jones had the windows down.

Surveillance video captured the encounter and shows Williams walking around the

car and briefly stopping by the passenger window. Later, when asked by a police

lieutenant, Williams admitted that he reached into the passenger window but denied
taking Jones’ wallet. Williams claimed he reached into the car window to feel the

leather seats.

                 After Williams left, Jones realized that his wallet was missing. He

called Williams but Williams denied taking the wallet.            Jones offered to give

Williams $500 if he returned the wallet, but Williams declined and continued to

insist he did not take the wallet.

                 Williams was indicted for two counts of theft as felonies of the fifth

degree. The first count alleged that Williams had taken an amount greater than

$1,000 but less than $7,500 and the second count alleged that he had taken bank

cards.

                 Williams waived the jury, and the case was tried to the bench. The

trial court found him guilty of both charges, sentenced him to community-control

sanctions, and ordered him to pay $2,500 in restitution to Jones.

                 Williams appeals raising the following assignments of error for

review.

                              Assignment of Error No. 1

         There was insufficient evidence to prove beyond a reasonable doubt
         each element of the offenses of which Mr. Williams was convicted.

                              Assignment of Error No. 2

         Mr. Williams received ineffective assistance of counsel when counsel
         failed to object to the State’s evidence in support of an essential element
         of Count 1 that was admitted in violation of Ohio Rule of Evidence
         1002.
                            Assignment of Error No. 3

      Mr. Williams received ineffective assistance of counsel when counsel
      failed to object to the restitution amount and, thus, failed to trigger an
      evidentiary hearing.

                            Assignment of Error No. 4

      The trial court erred in failing to determine Mr. Williams’ ability to pay
      $2500 in restitution as required by R.C. 2929.19(B)(5) and Mr.
      Williams received ineffective assistance of counsel when counsel failed
      to object to the restitution order on those grounds.

Law and Analysis

               For ease of analysis, we will address the assignments of error in

combination and/or out of order.

               In the first assignment of error, Williams argues that his convictions

were not supported by sufficient evidence. Here, Williams challenges whether there

was sufficient evidence to establish the items stolen, i.e., $2,500 in cash and bank

cards. In order to establish Williams was guilty of the crime of theft, the State

needed to prove that Williams with purpose to deprive the owner, Jones, of property

or services, did knowingly obtain or exert control over property or services without

the consent of the owner or person authorized to give consent. R.C. 2913.02(A)(1).

The state also needed to establish the value of the property because the value

determines the degree of felony. R.C. 2913.02(B)(2). If the value of the property or

services stolen is $1,000 or more and less than $7,500, or if the property is a credit

and/or debit card, the theft is a felony of the fifth degree. 

 R.C. 2913.71.
               A challenge to the sufficiency of the evidence questions whether the

State met its burden of production. State v. Hunter, 

 (8th Dist.),

citing State v. Thompkins, 

 (1997). Sufficiency of the

evidence involves a review of the evidence admitted at trial and a determination of

“‘whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.’” State v. Goins, 

(8th Dist.), quoting State v. Jenks, 

 (1991), paragraph two of the

syllabus. The question 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.” 

 The question is not

“‘whether the state’s evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction.’” 

 quoting 

.

               Here, Williams argues that there was not enough evidence for the

trier of fact to believe Jones had the cash and cards he claimed were in his wallet.

Williams argues that the State could have presented actual bank statements, rather

than screenshots to establish Jones withdrew cash from his account and named the

banks with which he held bank cards.

               “‘[S]ufficiency’ is a term of art meaning that legal standard which is

applied to determine whether the case may go to the jury or whether the evidence is

legally sufficient to support the jury verdict as a matter of law.” 

,

quoting Black’s Law Dictionary (6 Ed.1990).            Courts describe a sufficiency

challenge as a “test of adequacy.” State v. Wilson, 

, ¶ 25, citing


.       However, a witness’s testimony alone, if believed, is

sufficient to convict someone of a crime. State v. Bradley, 

, ¶ 34

(8th Dist.). If believed, Williams’ testimony was enough to establish the value and

identity of the items stolen. Jones testified that Williams took his wallet, which

contained bank cards and cash of at least $1,000 but less than $7,500.

               Accordingly, the first assignment of error is overruled.

               In the fourth assignment of error, Williams challenges the order of

restitution with regards to his ability to pay. He argues that the trial court erred

when it failed to consider his ability to pay under R.C. 2929.19(B)(5) before

imposing restitution and that he received ineffective assistance of counsel when his

attorney failed to object to the trial court’s failure to consider his ability pay. As

Williams’ remaining challenges all allege ineffective assistance of counsel, we will

address the challenge to the trial court’s imposition of restitution without discerning

Williams’ ability to pay first and then consider Williams’ ineffective assistance of

counsel arguments together.

               In the instant case, the trial court did not hold a hearing on the issue

of restitution. In fact, immediately after pronouncing the finding of guilt, the trial

court ordered Williams to pay Jones $2,500 in restitution. After making that

pronouncement, the court proceeded to sentencing.

               Arguments that restitution is inappropriate based on a defendant’s

financial situation “ignores this court’s conclusion that ‘the provisions of Marsy’s

Law supersede the defendant’s rights under R.C. 2929.19(B)(5).’” State v. Thorp,


 (8th Dist.), quoting Cleveland v. Rudolph, 

. Pursuant to Marsy’s Law, the defendant’s ability to pay is irrelevant. Rudolph,

 (8th Dist.). In Rudolph, the Court recognized a conflict

between the rights conferred to victims of crime pursuant to Marsy’s Law, a

constitutional amendment, and the statutory requirement that a trial court consider

the defendant’s ability to pay. 

 citing Ohio v. Oliver, 

 (12th

Dist.). Under Marsy’s law a victim of crime is entitled “to full and timely restitution

from the person who committed the criminal offense or delinquent act against

[them].” Ohio Const., art. I, § 10a(A)(7). The use of the word “full” to modify

restitution to the victim “does not leave room for any implication that the amount of

restitution could be reduced or limited after consideration of the offender’s ability

to pay, or that restitution order could be anything less than ‘complete’ restitution.”

.

                  Based on the foregoing, the trial court did not err when it imposed

restitution without first considering Williams’ ability to pay.

                  In the second, third, and the remainder of the fourth assignments of

error, Williams argues that he received ineffective assistance of counsel.

Specifically, he argues that he received ineffective assistance when (a) his counsel

failed to object to the admission of evidence that was in violation of Evid.R. 1002;

(b) when his counsel failed to object to the amount of restitution and thereby failed

to trigger an evidentiary hearing; and (c) when his counsel failed to object to the
imposition of restitution on the grounds that the trial court failed to assess his ability

to pay.

               Ineffective assistance of counsel is established when a defendant

demonstrates that “(1) counsel's performance fell below an objective standard of

reasonable representation and (2) he was prejudiced by that performance.” State v.

Morgan, 

 (8th Dist.), citing Strickland v. Washington, 

 (1984). Courts considering whether an attorney’s performance

fell below an objective standard of reasonableness, “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” 

. A defendant establishes prejudice by

showing that “there exists a reasonable probability that, but for counsel’s error, the

result of the proceeding would have been different.” State v. Davis, 

.

               Continuing our analysis of the fourth assignment of error, Williams

argues that he received ineffective assistance of counsel when his counsel failed to

object to the imposition of restitution based on the grounds of inability to pay.

Specifically, Williams argues that his counsel could have raised his indigent status

throughout the case, his disability, and the fact that Williams was supporting two

family members. Having established that a defendant’s ability to pay is no longer a

factor in determining the amount of restitution, we need not consider Williams’

argument any further. Accordingly, the fourth assignment of error is overruled.
               In the second assignment of error, Williams argues he received

ineffective assistance of counsel when counsel failed to object to the admission of

screenshots purportedly showing withdrawals from Jones’ bank accounts. Williams

argues that this evidence was inadmissible because it violated Evid.R. 1002 and it

did not satisfy any of the exceptions to the rule.

               Preliminarily, “[t]his was a bench trial where the trial judge is

presumed to consider only proper evidence.” State v. Colegrove, 

 (8th Dist.), citing State v. Chandler, 

 (8th Dist.), citing

State v. Post, 

 (1987). The Supreme Court of Ohio has

recognized that, in bench trials, trial judges are “‘presumed to consider only the

relevant, material and competent evidence in arriving at a judgment unless the

contrary affirmatively appears from the record.’” State v. Colegrove, 

 (8th Dist. 2000), quoting State v. Eubank, 

(1979).

               Failing to object to an error is not enough by itself to prevail on a claim

of ineffective assistance of counsel. “To prevail on such a claim, a defendant must

first show that there was a substantial violation of any of defense counsel’s essential

duties to his client and, second, that he was materially prejudiced by counsel's

ineffectiveness.” Ohio v. Holloway, 

 (1989). See also State

v. Wright, 

, ¶ 45 (8th Dist.) (“The failure to object is not a per se

indicator of ineffective assistance of counsel because counsel may refuse to object

for tactical reasons.”).
              Evid.R. 1002, the best evidence rule, provides:

      To prove the content of a writing, recording, or photograph, the original
      writing, recording, or photograph is required, except as otherwise
      provided in these rules or by statute enacted by the General Assembly
      not in conflict with a rule of the Supreme Court of Ohio.

               Courts have noted that

      [t]he best evidence rule has no application to a case where a party seeks
      to prove a fact which has an existence independently of any writing; he
      may do so by oral testimony, even though the fact has been reduced to,
      or is evidenced by, a writing. Nor is it contrary to the best evidence rule
      that oral testimony of a fact in issue may be primary evidence thereof,
      although there is written evidence of the same fact, where the essential
      fact to be proved is neither the existence nor the contents of the writing,
      but the existence of the independent fact itself, to which the writing is
      merely collateral or incidental.

Parma v. Schrader, 

 (8th Dist.), quoting 29 Am.Jur.2d

Evidence § 449 at 510.

              Here, Jones’ testimony that he had between $2,200 and $2,700 in

his wallet at the time it was stolen was sufficient to establish that fact. The

screenshots were not necessary to establish the amount stolen. Assuming arguendo

that the screenshots of Jones’ bank withdrawals were improperly admitted, the

admission was harmless beyond a reasonable doubt because Jones’ testimony was

sufficient to establish the cash contents of his wallet. Accordingly, Williams cannot

establish that he was prejudiced by his counsel’s failure to object. Accordingly, the

second assignment of error is overruled.

              Finally, in the third assignment of error, Williams argues he received

ineffective assistance when his counsel failed to challenge the restitution amount.
Williams argues that had his counsel objected, he could have challenged the

restitution amount in an evidentiary hearing and explored deficiencies in the

testimony regarding the amount of restitution more thoroughly. Restitution may be

based on “an amount recommended by the victim, the offender, a presentence

investigation report, estimates or receipts indicating the cost of repairing or

replacing property, and other information, provided that the amount the court

orders as restitution shall not exceed the amount of the economic loss suffered by

the victim as a direct and proximate result of the commission of the offense.” State

v. Green, 

 (8th Dist.), quoting R.C. 2929.18(A)(1); State v.

Lalain, 

. As discussed, under Marsy’s Law, restitution must be

ordered in the full amount of the victim’s loss. In Thorp, 

, this

court recognized that the amount of restitution needs to be shown by the

preponderance of the evidence. See also R.C. 2929.18(A)(1). “‘Preponderance of the

evidence’ means ‘evidence that’s more probable, more persuasive, or of greater

probative value.’” In re C.V.M., 

 (8th Dist.), citing In re D.P.,

, ¶ 52 (10th Dist.), quoting State v. Finkes, 

, ¶ 81

(10th Dist.).

                Here, as the trier of fact, the trial court heard all the evidence

regarding the amount of cash in Jones’s wallet and concluded a restitution award of

$2,500 was appropriate. Based on our review of the record, we find the restitution

order was supported by the preponderance of the evidence. Williams has presented

nothing to this court demonstrating the result would have been different had
Williams’ counsel objected to the amount. Given that there was evidence in the

record to support a restitution award of an even higher amount, counsel may have

decided not to object as a tactical decision. This court will not second guess counsel’s

tactical decisions. Consequently, Williams has failed to establish that he was

prejudiced by his counsel’s decision.

               Accordingly, the third assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EMANUELLA D. GROVES, JUDGE

LISA B. FORBES, P.J., and
MARY J. BOYLE, J., CONCUR