[Cite as State v. Smith,
2024-Ohio-5168.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 22CA17
:
v. :
: DECISION AND JUDGMENT
EDWARD T. SMITH, : ENTRY
:
Defendant-Appellant. :
:
_____________________________________________________________
APPEARANCES:
Mallorie A. Thomas, Patituce & Associates, LLC, Strongsville, Ohio, for
Appellant.
Alison L. Cauthorn and James E. Schneider, Assistant Washington County
Prosecuting Attorneys, Marietta, Ohio, for Appellee.
__________________________________________________________
Smith, P.J.
{¶1} Edward Smith appeals the judgment entry of the Washington
County Court of Common Pleas entered September 8, 2022. Smith was
convicted by a jury of one count of Theft in violation of R.C.
2913.02(A)(2)/(B)(1)(2), a felony of the fourth degree. Smith raises nine
assignments of error challenging his conviction. Upon review, however, we
find no merit to Smith’s assignments of error. Accordingly, we overrule
Smith’s assignments of error and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Washington No. 22CA17 2
{¶2} On December 12, 2019, the Washington County Grand Jury
returned a single count indictment against Edward Smith, (hereinafter
“Smith,”) alleging theft, in violation of R.C. 2913.02(A)(2)/(B)(1)(2), a
felony of the fourth degree. On December 17, 2019, Smith entered a not
guilty plea and was released on his own recognizance. Smith, a contractor,
owns Bottom Line Construction, LLC. The indictment stemmed from a
dispute between Smith and Dan and Susan Hale.
{¶3} Mr. Smith proceeded to a jury trial which occurred on June 14,
2022. The evidence at trial demonstrated that the Hales’ dispute with Smith
was intertwined with another dispute which had arisen between Smith and
Sand Hill United Methodist Church (the “church”). The Hales attended
Sand Hill United Methodist Church where Mr. Smith had been the chosen
bid for a steeple or “bell tower” project (the “project”). Dan Hale, the
president of the board of trustees for the church, was the contact person
between Smith and the church. On November 16, 2016, the church provided
Smith with a check for $33,100 as down payment on the church project.
{¶4} In January 2017, Mr. and Mrs. Hale met with Smith at their
home on Nelson Street in Marietta to discuss replacing their roof. Smith
estimated a total cost of $24,900 for the Hales’ project and requested down
payment in the amount of $12,450. On January 31, 2017, the Hales
Washington No. 22CA17 3
provided Smith a cashier’s check for $12,450. Smith deposited this check in
his company account.
(¶5} The reason for the provision of the $12,450 check from the Hales
to Smith was the key issue of the criminal trial. As the church project
proceeded, the church struggled with funding and communications broke
down between Smith and the church. On November 11, 2018, the church
sent Smith a letter canceling the contract with Mr. Smith and his company.
{¶6} Meanwhile, neither Mr. Smith nor anyone on behalf of Bottom
Line Construction ever performed work on the Hales’ home or delivered
materials to them in anticipation of work. On January 24, 2019, the Hales
sent Smith a letter canceling their roofing job and requesting return of their
money. Smith never returned to Hales their check for $12,450.
{¶7} The Hales contacted the Marietta Police Department in February
2019. Detective Sergeant Ryan Huffman contacted Smith, who admitted the
Hales gave him $12,450, but told Huffman that, it was “all part of the church
job.” Detective Huffman investigated further and eventually concluded that
the dispute between Mr. and Mrs. Hale and Mr. Smith was a criminal matter.
{¶8} Dan Hale and Edward Smith, along with others, testified at trial.
Several documentary exhibits were introduced into evidence. The crucial
exhibits were an estimate provided by Smith and a cashier’s check provided
Washington No. 22CA17 4
by the Hales. The matter largely turned upon the credibility of Mr. Hale and
Mr. Smith. On September 2, 2022, Smith was convicted of theft and
sentenced to a term of 120 days in jail, with five days of jail time credit, and
five years of supervised probation. He was also ordered to pay restitution to
victims Dan and Susan Hale in the amount of $12,450, as well as fines and
court costs.
{¶9} Smith timely appealed. Additional procedural facts and
testimony of the witnesses will be set forth below.
ASSIGNMENTS OF ERROR
I. THE STATE COMMITTED MULTIPLE ACTS OF
PROSECUTORIAL MISCONDUCT PURSUANT TO
BRADY V. MARYLAND IN VIOLATION OF
APPELLANT’S RIGHT TO A FAIR TRIAL UNDER
THE SIXTH AND FOURTEENTH AMENDMENTS.
II. THE TRIAL COURT ERRED BY FAILING TO ORDER
THE STATE TO TURN OVER APPELLANT’S
PROPERTY, THUS DENYING APPELLANT HIS
CONSITUTIONALLY PROTECTED RIGHT TO
PRESENT A DEFENSE IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS.
III. THE STATE ENGAGED IN PROSECUTORIAL
MISCONDUCT DURING CLOSING ARGUMENTS
THAT DEPRIVED APPELLANT OF HIS RIGHT TO A
FAIR TRIAL AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS.
IV. THE TRIAL COURT ERRED WHEN IT FAILED TO
GRANT APPELLANT’S MOTION TO DISMISS
WHEN APPELLANT’S RIGHT TO A SPEEDY TRIAL
Washington No. 22CA17 5
WAS VIOLATED AFTER HE WAS NOT BROUGHT
TO TRIAL IN THE TIME REQUIRED BY LAW.
V. THE TRIAL COURT ERRED AS A MATTER OF LAW
BY FAILING TO DISMISS A JUROR WHEN THAT
JUROR WAS OBSERVED COMMUNICATING WITH
THE VICTIM DURING TRIAL.
VI. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE
FAILED TO PURSUE THE REMOVAL OF THE
JUROR WHO WAS OBSERVED COMMUNICATING
WITH THE ALLEGED VICTIM DURING TRIAL.
VII. APPELLANT’S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
VIII. THE STATE FAILED TO PRESENT SUFFICIENT
EVIDENCE TO SUSTAIN A CONVICTION.
IX. THE CUMULATIVE EFFECT OF THE ERRORS IN
THIS CASE DEPRIVED APPELLANT OF HIS
CONSTITUTIONALLY GUARANTEED RIGHT TO A
FAIR TRIAL.
{¶10} We begin with consideration of Smith’s fourth assignment of
error.
ASSIGNMENT OF ERROR FOUR –
SPEEDY TRIAL
A. STANDARD OF REVIEW ON MOTION TO DISMISS
{¶11} On August 10, 2021, Smith filed a Motion to Dismiss for
Failure to Have a Speedy Trial. On September 22, 2021, the trial court
denied the motion. Smith’s trial finally commenced on June 14, 2022.
Washington No. 22CA17 6
Smith asserts that upon initiation of the underlying proceedings, 454 days
elapsed prior to his trial, well in excess of 270 days as provided by Ohio
statute. Smith has asserted both statutory and constitutional speedy trial
violations.
{¶12} “ ‘Appellate review of a trial court's decision on a motion to
dismiss for a violation of the speedy trial requirements presents a mixed
question of law and fact.’ ” State v. Brooks, 2018-Ohio-2210, ¶ 21 (4th
Dist.), quoting State v. Spencer,
2017-Ohio-456, ¶ 16 (4th Dist.); State v.
Baugh,
2018-Ohio-857, ¶ 71 (5th Dist.). “ ‘Thus, appellate courts will defer
to a trial court's findings of fact as long as competent, credible evidence
supports them.’ ”
Brooks, supra, quoting
Spencer at ¶ 16, citing State v.
Brown,
131 Ohio App.3d 387, 391 (4th Dist.1998). “ ‘Appellate courts then
independently determine whether the trial court properly applied the law to
the facts.’ ”
Brooks, supra;Spencer at ¶ 16. And when reviewing the legal
issues in a speedy trial claim, we must strictly construe the statutes against
the state.
Brooks, supra. See Brecksville v. Cook,
75 Ohio St.3d 53, 57
(1996);
Spencer at ¶ 16; State v. Deacey,
2017-Ohio-8102, ¶ 75 (2d Dist.).
B. LEGAL ANALYSIS
{¶13} The Sixth Amendment to the United States Constitution
Washington No. 22CA17 7
(which is made applicable to the states through the Due Process Clause of
the Fourteenth Amendment) and Article I, Section 10 of the Ohio
Constitution guarantee a criminal defendant the right to a speedy trial. This
guarantee is implemented by R.C. 2945.71, which provides specific statutory
time limits within which a person must be brought to trial. Brooks, supra, at
¶ 23; State v. Blackburn,
2008-Ohio-1823, ¶10. “R.C. 2945.71(C)(2)
‘requires that a person against whom a felony charge is pending shall be
brought to trial within 270 days after the person's arrest.’ ”
Brooks, supra,
quoting State v. Adams,
2015-Ohio-3954, ¶ 81.
{¶14} We begin with consideration of Smith’s statutory speedy trial
rights. When computing any period of time prescribed by an applicable
statute, the date of the act or event from which the period begins to run is not
included. State v. Fisher, 2012-Ohio-6144, ¶ 14 (4th Dist.); State v.
Alexander,
2009-Ohio-1401, ¶ 18 (4th Dist.), citing State v. Saffin, 2008-
Ohio-338, ¶ 9 (4th Dist.). “ ‘Time is calculated to run the day after the
date of arrest.’ ” State v. Miller,
2012-Ohio-1263, ¶ 9 (9th Dist.), quoting
State v. Brownard,
2007-Ohio-4342, ¶ 12 (9th Dist.).
{¶15} Smith was originally arrested in September 2019, but the case
was dismissed. He was later indicted in December 2019. By the time of the
filing of Smith’s August 10, 2021 motion, 704 days had elapsed. Because
Washington No. 22CA17 8
the 270-day period was exceeded, Smith presented a prima facie speedy trial
violation. See Brooks, supra, at ¶ 24; State v. Smith,
2017-Ohio-7864, ¶ 21
(4th Dist.), citing State v. Squillace,
2016-Ohio-1038, ¶ 14 (10th Dist.).
Once a defendant establishes a prima facie case for dismissal, the burden
shifts to the State to prove that the time was sufficiently tolled to extend the
period. Brooks, at ¶ 24;
Smith at ¶ 21, citing Squillace and State v.
Anderson,
2016-Ohio-7252, ¶ 19 (4th Dist.).
{¶16} “ ‘R.C. 2945.72 contains an exhaustive list of events and
circumstances that extend the time within which a defendant must be
brought to trial.’ ” Brooks, at ¶ 25, quoting State v. Ramey, 2012-Ohio-
2904, ¶ 24. The State of Ohio and Smith agree that through May 4, 2020,
166 days of speedy trial time elapsed.12 The defense had moved for a
continuance due to the COVID 19 pandemic, which was granted on May 4,
2020. The trial was continued to June 23, 2020. Beginning our calculations
on May 5, 2020, the speedy trial clock was tolled until June 23, 2020 for 50
days.
{¶17}The case was again continued, due to the pandemic, on
1
The trial court set forth its calculations as to the time tolled in its decision on Smith’s motion to dismiss.
Since the parties are not in dispute on this point, we do not find it necessary to discuss herein.
2
Smith also agrees that upon the parties’ agreed motions to continue on January 5, 2022, speedy trial time
was tolled until the trial date in June 2022.
Washington No. 22CA17 9
the court’s own motion of June 16, 2020. A new trial date of September 22,
2020 was established. However, the case had previously been continued to
June 23, 2020, so we begin our count at June 24, 2020. Between June 24,
2020 and September 22, 2020, 90 days elapsed. Smith claims this tolling
period is an error of the court. We disagree.
{¶18} The COVID 19 pandemic tolling event served to extend the
speedy trial time. The trial court’s entry reads: “Upon the Court’s own
Motion, and due to the COVID 19 pandemic, the above-styled case currently
set for June 23-25, 2020 jury trial is continued.” The Supreme Court of
Ohio noted in State v. Lynum (In re Fleegle), 2020-Ohio-5636:
[A]ll Ohio judges have been advised, trial judges have the
authority to continue trials for defendants on a case-bycase basis without violating speedy-trial requirements. Id.
at ¶ 7.
{¶19}We also noted the Supreme Court’s pronouncement
above in State v. Dixon, 2022-Ohio-2807 (4th Dist.):
“[T]rial judges have the authority to continue trials for
defendants on a case-by-case basis without violating
speedy-trial requirements … courts may suspend jury
trials to prevent the spread of the coronavirus and they
may do so consistent with state and federal speedy-trial
obligations.” State v. Morant, 2021-Ohio-3160, ¶ 27 (7th
Dist.) citing Fleegle, supra,2020-Ohio-5636, at ¶ 7; 2020
Ohio Atty.Gen.Ops. No. 2020-002; Ohio Supreme Court
Coronavirus Resources.
Washington No. 22CA17 10
Dixon, at ¶ 65. The trial court's June 16, 2020 sua sponte order notes only
that the matter was continued due to the COVID 19 pandemic. Upon our
review of the record, we observe that Smith’s case was transferred to a
different judge on June 12, 2020. While the case had been previously
continued on the basis of the pandemic, we presume that the new judge
assigned to the case properly followed the law in continuing the matter again
on that basis. We find the continuance was reasonable in purpose and length
and tolled the speedy trial clock. Smith’s first contention is without merit.
{¶20} On September 3, 2020, defense counsel moved to
continue the trial date due to a scheduling conflict. Counsel’s motion was
granted on September 14, 2020, and a new trial date set for January 11,
2021. Because the matter had previously been scheduled for September 22,
2020, we begin our count on September 23, 2020. The speedy trial clock
was stopped between September 23, 2020 and January 11, 2021 for a total of
111 days.3
{¶21} On January 4, 2021, the trial court ruled on Appellant’s
3
After this time, defense counsel filed a motion to withdraw as counsel on October 7, 2020. This motion
was granted on October 23, 2020. Defendant was given 15 days to obtain new counsel. On November 17,
2020, the defendant pro se filed a motion to continue the trial date. He also advised that he could not afford
counsel, appealed the decision allowing his attorney to withdraw and filed a motion to dismiss his case on
two separate grounds. None of these occurrences affect the speedy trial count as the matter had been
continued for jury trial on January 11, 2021.
Washington No. 22CA17 11
October 7, 2020 and November 17, 2020 motions and converted the January
11, 2021 trial date to a hearing date. On January 11, 2021, Defendant
appeared without counsel. Thereafter, the trial court continued the matter
until February 9, 2021 for a pretrial conference in order to allow the
defendant to file a financial affidavit. Beginning our count at January 12,
2021 to February 9, 2021, 29 days elapsed.
{¶22} Smith’s next contention is that the trial court erred by finding
that time was tolled between February 9, 2021 and May 18, 2021. On its
own initiative by entry filed January 12, 2021, the trial court continued the
jury trial date to May 18, 2021. Beginning our count on February 10, 2021,
the time elapsed up to May 18, 2021 was 98 days.4 Smith argues this
continuance was not reasonable. We disagree.
{¶23} We find that R.C. 2945.72, extension of time for hearing
or trial, is applicable. The statute provides as follows:
(C) Any period of delay necessitated by the accused's lack
of counsel, provided that such delay is not occasioned by
any lack of diligence in providing counsel to an indigent
accused upon the accused's request as required by law;
(D) Any period of delay occasioned by the neglect or
improper act of the accused ….
4
Further, on April 21, 2021, defense counsel filed a suggestion of incompetence, a plea of not guilty by
reason of insanity. Counsel also filed and renewed motions to withdraw as counsel. On May 3, 2021, the
trial court put on an entry ordering Appellant to undergo a competency evaluation. On May 13, 2021, the
trial court put on another order that Appellant must attend his previously scheduled evaluation. These
motions did not affect the speedy trial clock as the matter was continued to May 18th. The competency
report was filed on June 3, 2021.
Washington No. 22CA17 12
{¶24} Smith ignores the reasons of his own making that caused the
need for continuance and were discussed in the trial court’s January 12, 2021
entry as follows:
This matter came on for hearing on January 11, 2021,
pursuant to a Court order filed January 4, 2021, requiring
Defendant Edward T. Smith to appear with retained
counsel, or with a completed financial affidavit so that the
Court could determine defendant’s ability to afford
counsel. Present in open Court were Defendant Edward
T. Smith, without counsel, …. Upon inquiry by the
Court the Defendant advised that he has not retained
counsel, and that he does not want to file an Affidavit
pertaining to his finances without counsel reviewing it
with him first. …. The Court then ORDERS that
Attorney Chandra Ontko be appointed to represent the
Defendant to counsel with him about the financial
affidavit, and to assist defendant in completing it for filing
with the Court. … The Court further ORDERS that the
Financial Affidavit is to be completed and filed with the
Court by Monday February 1, 2021.
{¶25} As the record demonstrates, Smith’s initial trial counsel had
filed a motion to withdraw for the reasons listed below, which had been
granted months before in October of 2020.5 Smith was without counsel for a
substantial period of time. New defense counsel, which turned out not to be
Attorney Ontko, was to be appointed on February 9, 2021. It was only
reasonable for the trial court to give new counsel an opportunity to review
5
The reasons listed in this motion citing irretrievable breakdown of the attorney-client relationship were
allegations of: (1) use of offensive and profane language directed at counsel; (2) posting of false
information regarding counsel on the internet; and (3) threats directed at counsel.
Washington No. 22CA17 13
Smith’s case and prepare for trial. Even if the trial court had not sua sponte
continued the matter, it is likely that Smith’s new counsel would have
requested a continuance. We find no merit to Smith’s second contention.
{¶26} The matter was thereafter continued between May 19, 2021 to
June 3, 2021, when the competency evaluation was filed. During this time,
15 days elapsed. On June 8, 2021, at a hearing on the pending motions,
Smith’s current attorney was allowed to withdraw and by entry dated June
11, 2021, the trial was rescheduled to October. New counsel was not
appointed until July 23, 2021. Regardless of the appointment, the trial date
was previously continued to October 12, 2021. Smith’s final challenge is to
assert that the clock resumed on July 2 through July 23, 2021. This is
incorrect. The matter was already continued through October 12, 2021.
Furthermore, when Smith’s counsel was allowed to withdraw in June and
Smith did not obtain new counsel until mid-July, Smith was without counsel
by his own fault. New counsel certainly would have needed preparation
time for the October 2021 trial. Smith’s third contention is without merit.
{¶27} On August 10, 2021, Appellant’s new counsel filed a motion to
dismiss on speedy trial grounds. Between June 12, 2021 and August 10,
2021, 60 days elapsed. In summary, between September 6, 2019 and August
10, 2021, 704 days elapsed. However, adding the days elapsed when the
Washington No. 22CA17 14
speedy trial clock was stopped, the total number of days elapsed is 619 days.
Subtracting 619 days elapsed from 704 total days, the number of days
counting toward speedy trial time is 85 days, well within the 270.
{¶28} Furthermore, we need not consider any time beyond the August
10, 2021 motion date because Smith did not renew his motion to dismiss. In
State v. Salser, 2020-Ohio-1000, (5th Dist.), appellant contended that he had
received the ineffective assistance of counsel due to counsel’s failure to
renew a motion to dismiss based upon speedy trial grounds due to the
passage of 122 days from the trial court’s denial of the initial motion to
dismiss until the subsequently scheduled trial date. The court noted that
while appellant did file a motion to dismiss based upon a speedy trial
violation in March 2019, he did not raise the issue of the delay subsequent to
the decision denying his first motion. The Salser court observed:
A defendant cannot raise speedy trial for the first time on
appeal. City of Worthington v. Ogilby, 8 Ohio App.3d 25,
(10th Dist.1982) paragraph 2 of the syllabus as quoted in
State v. Vance, 2004-Ohio-258, ¶ 45 (5th Dist.).
Salser, at ¶ 25. See also, State v . Berry,
1999 WL 43217, (10th Dist.)
(Where Appellant did not re-assert motion alleging he was denied his right
to speedy trial, appellate court concluded that appellant waived the issue).
{¶29} Based on our review of the record, as set forth above, we find
the trial court properly applied the law and competent credible evidence
Washington No. 22CA17 15
supports the trial court’s denial of Smith’s motion to dismiss. As such, we
find no merit to Smith’s argument that his statutory speedy trial rights were
violated.
{¶30} Furthermore, we find no constitutional violation. In State v.
McDougald, 2022-Ohio-3191,¶ 13 (4th Dist.), this court observed:
To determine whether there has been a denial of a
defendant's constitutional right to a speedy trial, the court
considers four factors identified in Barker v. Wingo, 407
U.S. 514, 523 (1972): “(1) the length of delay, (2) the
reason for the delay, (3) the defendant's assertion of his
right to a speedy trial, and (4) the prejudice to the
defendant.” State v. Hull,2006-Ohio-4252, ¶ 22, citing
Barker at 530, 407 U.S. 514. No single factor controls the
analysis, but the length of the delay is important. “Until
there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that
go into the balance.” Barker at 530, 407 U.S. 514.
Generally, a delay that approaches one year is
presumptively prejudicial. Doggett v. United States, 505
U.S. 647 (1992), fn. 1. Accord, State v. Long, 2020-Ohio-
5363, ¶ 14.
{¶31} Beginning with the first and second factors, we observe that
while in this case the delay appears to be presumptively prejudicial, the
reasons for the delay, notwithstanding the COVID 19 pandemic, are
substantially due to Smith’s own conduct, as referenced above. At one
point, the trial court described Smith’s behavior as “contumacious.” The
record supports this description and we find the record demonstrates that
Washington No. 22CA17 16
Smith’s own conduct was the cause of most of the delays throughout the trial
court proceedings.
{¶32}The only factor in Smith’s favor is that he did assert his right to
speedy trial on August 10, 2021. As to the fourth and final factor, we cannot
find that Smith was prejudiced due to the delay in bringing him to trial. If
anything, the delay gave Smith more time to prepare. Again, analyzing
Smith’s argument under a constitutional analysis, we find the trial court
properly applied the law and competent credible evidence supports the trial
court’s decision to deny Smith’s motion. Thus, we also find no
constitutional violation of Smith’s speedy trial rights. Based on the
foregoing, Smith’s fourth assignment of error is without merit and is hereby
overruled.
{¶33}Because we find it helpful to have the trial testimony set forth
early on in this opinion, we next consider Smith’s seventh and eighth
assignments of error.
ASSIGNMENTS OF ERROR SEVEN AND EIGHT- MANIFEST
WEIGHT OF THE EVIDENCE AND SUFFICIENCY OF THE
EVIDENCE
A. STANDARD OF REVIEW
{¶34} A claim of insufficient evidence invokes a due process concern
Washington No. 22CA17 17
and raises the question whether the evidence is legally sufficient to support
the verdict as a matter of law. State v. Wickersham, 2015-Ohio-2756, ¶ 22
(4th Dist.), citing, State v. Thompkins,
78 Ohio St.3d 380, 386 (1997).
When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence,
if believed, reasonably could support a finding of guilt beyond a reasonable
doubt. Thompkins, syllabus. The standard of review is whether, after
viewing the probative evidence and inferences reasonably drawn therefrom
in the light most favorable to the prosecution, any rational trier of fact could
have found all the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Jenks,
61
Ohio St.3d 259, 273 (1991). Furthermore, a reviewing court is not to assess
“whether the state's evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” Thompkins,
78
Ohio St.3d at 390 (Cook, J., concurring).
{¶35} Thus, when reviewing a sufficiency-of-the-evidence
claim, an appellate court must construe the evidence in a light most
favorable to the prosecution. Wickersham, supra, at ¶ 23; State v. Hill, 75
Ohio St.3d 195, 205 (1996); State v. Grant,
67 Ohio St.3d 465, 477 (1993).
A reviewing court will not overturn a conviction on a sufficiency-of-the-
Washington No. 22CA17 18
evidence claim unless reasonable minds could not reach the conclusion that
the trier of fact did. State v. Tibbetts,
92 Ohio St.3d 146, 162 (2001); State
v. Treesh,
90 Ohio St.3d 460, 484 (2001).
{¶36} “ ‘Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the
evidence.’ ” Wickersham, supra, at ¶ 24, quoting Thompkins, 78 Ohio St.3d
at 387. “ ‘Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing
the evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight
is not a question of mathematics but depends on its effect in inducing
belief.” ’ ” Eastley v. Volkman,
2012-Ohio-2179, ¶ 12, quoting Thompkins,
78 Ohio St.3d at 387, quoting Black's Law Dictionary 1594 (6th ed.1990).
{¶37} When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence, and consider the credibility
of witnesses. The reviewing court must bear in mind, however, that
Washington No. 22CA17 19
credibility generally is an issue for the trier of fact to resolve. Wickersham,
supra, at ¶ 25; State v. Issa, 93 Ohio St.3d 49, 67 (2001); State v. Murphy,
2008-Ohio-1744, ¶ 31 (4th Dist.). “ ‘Because the trier of fact sees and hears
the witnesses and is particularly competent to decide “whether, and to what
extent, to credit the testimony of particular witnesses,” we must afford
substantial deference to its determinations of credibility.’ ” Barberton v.
Jenney,
2010-Ohio-2420, ¶ 20, quoting State v. Konya,
2006-Ohio-6312, ¶ 6
(2d Dist.), quoting State v. Lawson,
1997 WL 476684, *4 (2d Dist.). As the
Eastley court explained:
“ ‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment must be made in favor of the
judgment and the finding of facts.
*14 …. If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it that
interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and
judgment.’ ” Eastley at ¶ 21, quoting Seasons Coal Co.,
Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn.3,
quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 60, at 191-192 (1978). Thus, an appellate court
will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists
in the record for its decision. State v. Picklesimer, 2012-
Ohio-1282,¶ 24 (4th Dist.); accord State v. Howard, 2007-
Ohio-6331, ¶ 6 (4th Dist.), (“We will not intercede as long
as the trier of fact has some factual and rational basis for
its determination of credibility and weight.”).
{¶38} Once the reviewing court finishes its examination, the
Washington No. 22CA17 20
court may reverse the judgment of conviction only if it appears that the fact-
finder, when resolving the conflicts in evidence, “ ‘ “clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered .” ’ ” Wickersham, supra, ¶ 26, quoting
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin,
20 Ohio App.3d
172, 175 (1st Dist.1983). A reviewing court should find a conviction against
the manifest weight of the evidence only in the “ ‘exceptional case
in which the evidence weighs heavily against the conviction.’ ”
Id., quoting
Martin, at 175; State v. Lindsey,
87 Ohio St.3d 479, 483 (2000).
{¶39} When an appellate court concludes that the weight of the
evidence supports a defendant's conviction, this conclusion necessarily
includes a finding that sufficient evidence supports the conviction.
Wickersham, supra, at ¶ 27; State v. Pollitt, 2010-Ohio-2556, ¶ 15 (4th
Dist.). “ ‘Thus, a determination that [a] conviction is supported by the
weight of the evidence will also be dispositive of the issue of sufficiency.’ ”
State v. Lombardi,
2005-Ohio-4942, ¶ 9 (9th Dist.), quoting State v. Roberts,
1997 WL 600669, *5. Therefore, we first consider Smith’s argument that
his theft conviction is against the manifest weight of the evidence.
B. LEGAL ANALYSIS
{¶40} The trial testimonies of Dan Hale and Edward Smith were
Washington No. 22CA17 21
lengthy. Some facts are not disputed. Both Hale and Smith testified they
met as a result of the church’s contract with Smith. Smith initially quoted a
price of $60,200. The church also wanted an aluminum porch added, with
tile to match the steeple, which was quoted at an additional $6,000. Smith
required that 50 percent of the total cost be paid up front.
{¶41} Both witnesses testified that when the contract between Smith
and the church began, the church’s financing was not actually in place. Mr.
and Mrs. Hale initially loaned the church $17,000 so that the church could
pay Smith an initial check of $33,100 to get the project on his schedule. The
cost for replacing the rotted posts was over and above the original contract.
Smith continued to request more funds and the financing delays led to work
delays.
{¶42} Dan Hale and Ed Smith began the church project with good
rapport but the delays led to a breakdown in communications and eventually
another church member began dealing with Smith in Hale’s place. While
there is much testimony about the church’s contract with Smith, we are
mindful that the ultimate issue in this case is whether or not Smith
committed a criminal act by refusing to return the Hales’ $12,450 check.
The following is a summary of the testimony of the prosecution witnesses.
1. Dan Hale
Washington No. 22CA17 22
{¶43} Hale is a lifelong member of the church and chairman of the
board of trustees. Mr. Hale testified there were numerous conversations and
texts between Smith and himself. The church wrote numerous checks to
Bottom Line Construction and Hale gave Smith many of them at the church.
Mr. Hale identified State’s Exhibit E-1 as the estimate prepared for the
church project dated November 22, 2016. The church’s address was at the
top of the exhibit with Dan Hale’s name and phone number as contact
person. The bottom of the estimate reflected that $30,100 was half of the
full price. It also said “materials are 50 percent.” Ed Smith’s signature and
initials were on the estimate. The estimate also reflected that the first half of
the money had been paid.
{¶44} Mr. Hale testified he and his wife Susan were having problems
with their own roof and ceilings and in December 2016, asked Smith about
doing some work at their home. Sometime in January 2017, Smith texted
and asked “to go up and take a gander at it.” Smith came to the Hales’
residence, inspected the problem areas, and gave them some ideas. Smith
came by a second time and the Hales showed Smith pictures. Smith quoted
them a price of $24,900 and advised they would need to give him half the
money up front to secure the project. Smith said he’d schedule their project
Washington No. 22CA17 23
for immediately after the church project. Hale knew the church was having
problems obtaining its loan.
{¶45} Hale identified State’s Exhibit A as a cashier’s check for
$12,450 from Settler’s Bank, dated January 30, 2017 and written to “Ed
Smith- Bottom Line Construction,” which represented the first half of
payment for the roof job at the Hales’ home. Hale testified as follows:
Ed came that evening. … We agreed to a price. …
We wanted to put another type of a roof on the front of our
house. We have just a ranch style house. We wanted a
small porch.… We was going to have gutters put on.
We would have had to have had a drain line ran from the
upper part of the house down to the road, ….
Hale continued:
Next thing you know, Ed was like, okay, now I have a
question. And his question was, he wanted some more
money from the church. And at that time, I told him, I
said, well, Ed, we’ve already gave you half the money. He
said, well, I need some more. And I said, well, would this
help you out, if we gave you half our money up front? And
that’s what we done, …. So we figured that, we’ve
already gave you half the money, you know. But he
needed some more, so that was when me and my wife,
well, would this help you out, if we gave you half of ours
up front? Yes. And I’ll make sure you’re on the schedule.
You’ll be the next one after the church is over.
Hale’s testimony emphasized that the payment was for their own roof
project, not the church’s project, “but it was to help him out at the moment,
Washington No. 22CA17 24
because you know the church wasn’t - - hadn’t yet secured their loan.”
However, Smith did not give them a written estimate at that time.
{¶46} In April 2017, when Smith and Hale were at the church, Smith
gave Hale the estimate for the home roof project, identified as State’s
Exhibit B. Hale testified the listed work to be performed was different than
what they had discussed with Smith in January. For example, the estimate
contained nothing about the gutter work. Moreover, the estimate did not
reflect that the Hales had already paid Smith $12,450 in January. Nothing
on the estimate referenced the church project.
{¶47} Thereafter, disagreements and delays between Smith and the
church continued although the church’s loan was eventually approved. The
trustees invited Smith to a September 5, 2017 meeting at the church in order
to discuss “wrapping up the project.” The Hales, Pastor Rick Carpenter,
Jerry Stevens, Karen Brown, and Eric Knowlton were in attendance.
Specifically, Smith was asked: (1) when the job would be completed and
(2) what the final payment amount owed to Smith would be. The trustees
also generally discussed the repayment of the $12,450 to the Hales. Mr.
Hale testified:
If I can go back, we had a telephone conversation a few
days before that, trying to come up with a price, and that
was where the price came to that day of September 5th.
Washington No. 22CA17 25
Ed wanted $10,150. … Which would have made the
total amount when he was completed at $12,450.
{¶48} Shortly after the meeting, the church gave Bottom Line
Construction a check for $10,150 dated September 14, 2017. Hale testified
after the $10,150 payment to Smith for the church project, they agreed final
amount due to Smith upon completion was $12,450. Hale testified that
Smith told him that when the church job was completed and he received the
$12,450, he would repay the Hales. However, the church project was still
unfinished in July 2018.
{¶49} The Hales’ roof job was never started. Hale testified neither
Smith nor anyone on his behalf performed work at their home or delivered
materials. Smith never returned the $12,450 deposit. The Hales sent Smith
a letter dated January 24, 2019, by regular and certified mail, requesting
their money back. Smith never responded. When Hale met with Officer
Ryan Huffman, Hale provided his cell phone so Huffman could extract the
calls and texts involving Ed Smith.
{¶50} The prosecutor called attention to text No. 522 in April 2017:
A: Oh. This is me to Ed. … Spent from noon till four
o’clock cleaning up water at the church again today.
More drywall fell while we were there. … As for
us, we have the money, but I want it all wrote out in
a contract, so I can compare notes with what we
talked about.
Washington No. 22CA17 26
…
Q: And now, what was - - the next line, 523?
A: Okay. This is from Ed to me. Did I not give you a
copy yet, question mark.
Q: And might that have been in response to, when you
said you wanted a contract?
A: That’s correct. A contract for my place, yeah.
Q: All right. And then look at 524.
A: 524 from me to Ed. You took our money and I
assume cashed it. That is all we have, other than a
verbal agreement. Do you have a record of what we
have already given you, question mark.
Q: Now look at line 525.
A: From Ed to Dan. I would have to look it all up. But
I did type up a contract for your roof back when we
agreed to it, that I have a copy of, yes. Will get you
a copy next week.
Q: Now look at line 526.
A: This is me to Ed. I assume you have the picture of
the porch roof that Susan gave you, question mark.
Q: If you recall, was that in relationship to the porch
roof at your house on Nelson Avenue, or the church
porch roof?
A: No, this would be the - - my house roof on Nelson
Avenue.
{¶51} The prosecutor also questioned Hale about a text conversation
on August 4, 2017 in which Dan Hale told Smith that the Hales were
Washington No. 22CA17 27
deciding whether to get the roof done or their money returned. By that time,
they had received the estimate on the home roof job. However, the estimate
did not accurately reflect the work they had discussed with Smith or reflect
that they had paid Smith half the money.
{¶52} On cross-examination, defense counsel attempted to show that
the Hales never had a written or even verbal contract with Smith for a home
roof project. Hale admitted giving Smith $12,450 at the church to help out
with the church project. He admitted that there were no text messages
during the ten-day period around January 31, 2017, when he gave Smith the
$12,450 check. Hale admitted that the estimate Smith gave them did not
reflect that he had paid $12,450. Hale denied, after giving Smith the check
that he said “we’ll settle up later with the church” or “sort it out later with
the church.” Hale denied making that implication to Smith. Hale admitted
the contracts with the church were signed and indicated payments had been
made.
2. Eric Charles Knowlton
{¶53} Mr. Knowlton testified he was a church member and served as
finance chairman. He knew about the church’s loan delay. Knowlton
testified the Hales wrote a check to the church on November 16, 2016 to
help cover the church’s first check to Smith and Bottom Line Construction
Washington No. 22CA17 28
in the amount of $33,100 check. Thereafter, the Church paid back the Hales
the money they contributed.
{¶54} Knowlton identified and authenticated State’s Exhibits F-1
through F-8 as checks written for the Project to Bottom Line Construction
from the church’s account with People’s Bank. Knowlton signed the checks.
We set them forth as follows:
F-1, dated November 22, 2016 in the amount of $33,100;
F-2, dated February 16, 2017, in the amount of $10.000;
F-3, dated March 3, 2016, in the amount of $5,5006
F-4, dated April 7, 2017, in the amount of $7,500;
F-5, dated July 27, 2017, in the amount of $3,000;
F-6, dated August 6, 2017, in the amount of $4,500;
F-7, dated August 22, 2017, in the amount of $1,250;
F-8, dated September 14, 2017, in the amount of
$10,150.
These amounts total $75,000 paid from the church to Smith’s company.
3. Karen Brown
{¶55} Ms. Brown testified she was a member of the board of trustees
6
This check was posted on March 6, 2017 and the testimony was that the date it was written was incorrect.
Washington No. 22CA17 29
and church custodian. Smith and his workmen had access to the church for
the restroom and for storage. Brown was present at the September 5, 2017
meeting with Smith when he requested more funds from the church. Brown
testified as follows:
Q: Toward the end of that meeting, did you hear Mr.
Smith make any other statements regarding Dan
Hale or Susan Hale?
A: The way I understood it was, is once the church paid
Mr. Smith, Mr. Smith would then pay Mr. and Mrs.
Hale.
Q: All right. And you … heard that from Ed Smith?
A: Yes.
4. Rick Carpenter
{¶56} Mr. Carpenter pastored the Sand Hill United Methodist
Church from July 1, 2016 until June 30, 2020. Pastor Carpenter knew about
the project, loan delays, and the Hales’ loan to the church.
{¶57} Pastor Carpenter attended the September 5, 2017 meeting of the
church council with Ed Smith. The purpose of the meeting was to try to get
Smith to finish the church job and to discuss the church’s final payment.
Pastor Carpenter knew that the Hales had dealings with Smith for their own
residential roof project. Carpenter testified:
Q: And do you recall any statements that Ed Smith
made during that meeting concerning Dan and
Washington No. 22CA17 30
Susan Hale on a personal level, as opposed to the
church position?
A: Yes. … Not word for word, but about him owing
them money for the down payment they made for
him to do work on their house.
Q: All right.
A: And concern about, we would pay them instead of
him.
{¶58} After the meeting, Pastor Carpenter received a phone call from
Smith which he described as follows: “… was about us paying Dan and
Sue instead of paying him. And I told him, we cannot do that. We have a
contract with him. If we paid them, we would still have to pay him.”
Counsel continued:
Q: All right. So he was wanting to make sure that
when he finished the job - -
A: We would have paid him.
Q: - - the church was going to pay him?
A: Yes.
Q: And let him settle up with the Hales.
A: Correct.
Q: And you assured him this was the church’s position as well.
A: Yes, I did.
…
Washington No. 22CA17 31
Q: Did the - - at any time, did Ed Smith in these
conversations discuss with you the fact that he felt
because of his dealing with Dan and Susan Hale that
the church owed them the $12,450.
A: No.
Q: Did he ever suggest that to you?
A: No, he was just concerned that we would pay them
and not him.
{¶59} On cross-examination, Pastor Carpenter admitted there were
no audio recordings of the church meetings, just secretarial notes. Defense
counsel inquired:
Q: In your testimony, finally, you do admit that
the money that we’re talking about here, that the
Hales gave to Bottom Line Construction, this
check that we talked about, you know, giving them
back, that Mr. Smith, through Bottom Line
Construction was supposed to give them back, this
agreement that he was supposed to give them back
this money, that that money was actually used in
the church project. Isn’t that true?
A: The money from the Hales?
Q: Correct.
A: That was their personal money for their
personal business. It had nothing to do with the
church.
Q: So it’s your belief that money was not used in the
church project?
Washington No. 22CA17 32
A: The church paid everything out of their accounts.
Everything paid from the church, came from church
accounts. That money was a separate contract with
the Hales and Mr. Smith.
5. Detective Sergeant Ryan Huffman
{¶60} In February 2019, Detective Huffman spoke with the Hales
who explained their dispute with Smith and provided documentation. Mrs.
Hale later provided detailed notes of meeting with Smith and Mr. Hale
provided his cell phone. Huffman’s initial impression was that it could be a
civil matter. While the Hales were in his office, Huffman made a phone call
to Smith hoping to quickly resolve the matter. Smith was given the
opportunity to explain his side of the dispute.
{¶61} At this point, the prosecutor played State’s Exhibit N. We set
forth several excerpts as follows:
Detective: Ed, hey, this is Sergeant Huffman down at
Marietta P.D. … You got a couple of
minutes?
Smith: Sure.
Detective: I just sat down with Dan and Susan Hale. …
* Basically, they brought forward the issue
with the payment for $12,450 they did back
in 2017, and the job not being basically - - the
job at the church and the job in Marietta are
two separate, different things. So the only
one I’m concerned about is the job at the
house.
Washington No. 22CA17 33
Smith: They - -- they didn’t make a payment. …
They made a payment for their church.
Detective: … The only one I’m concerned with now
is their house. In 2017, when they gave you
the cashier’s check as half down, and then
nothing happened, and there was basically
an agreement that you were going to refund
their money.
Smith: No, not true.… That’s not true. … No,
if they want to … cause problems about
that a year later, they can take …
(End of clip. Recording paused.)
Detective: … They came in here and met with me
today.… You did the job at the church,
and then you contracted to do a slate job at
their house.
Smith: That is not - - no, sir. No, sir. They …
* talked about a shingle job at their house,
But …. There was no contract, never was
under no contract. The was no contract on a
project at their home. You are
misinformed.… There is no contract on
the property at - -
Detective: Correct. They brought in a - - they brought
in a copy of the contract in that you - -
Smith: They brought in a copy of an estimate. …
They have an estimate on that house and
nothing more. They never entered … a
contract on that home. … Look, we are
going to court with the church, and they - -
they aren’t as friendly as they seem. …
They’re not as honest as they seem.
Washington No. 22CA17 34
(End of clip. Recording resumed playing transcribed as
follows:) …
Smith: I got fired from a job that they- - that Dan
hired me to do on a church. … And that is
it. (End of clip. Recording resumed playing,
transcribed as follow:)
Detective: So, what I got in front of me, maybe - - it’s
what you’re referring to as an estimate - -
was for 24- - 9 to do - - that job at his house,
at 108 Nelson Avenue. And then I have a
copy of the cashier’s check, which they paid
24-5 [sic], which would have been half
down for that job.
Smith: That was a payment that Susan made for the
church, because the church was behind on
their payment. That is not a payment they
made for a roof contract at their house, and
they have no signed con- - (End of clip.
Recording resumed playing, transcribed as
follows:)
Smith: - - contract at their house, like the …
church does for the church. No, sir.
Detective: So are you going to have some kind of
documentation? Because they’ve got a
bunch of text messages.
Smith: I sure do. … I’ve got a whole file of
documentation on the Sand Hill - - (End of
clip. Recording resumed playing,
transcribed as follows:)
Smith: There’s no documentation on Dan Hall
[sic]. … There’s no job for Dan Hall.
Detective: Well, here’s my problem … Ed, is you’re
Washington No. 22CA17 35
saying that whatever sheet they have here is
an estimate. And the estimate say, 50
percent - - (overtalking )- - they said - -
(overtalking) - - they - - hold on, don’t
interrupt me, I don’t interrupt you. They say
the estimate is for 12 - - 50 percent down
was $12,450, and then I got a copy of the
cashier’s check for $12,450 to you from
them. Now, they said there’s
communication and where you all talk about
that money being refunded - -
Smith: No, they - -
Detective: - - because they’re canceling the job.
Smith: They had sent me a letter telling me that
they want money refunded - -(End of clip.
Recording resumed playing, transcribed as
follows:)
Smith: - - and they’ve harassed me since they fired
me from the church. … That’s the only
job I’ve ever been fired from in a nine-year
career. … This is absolutely ludicrous.
Detective: … So if you’re telling me you’ve got
some communication between you and Dan
or Susan, … I would love to see them,
disputing the fact that this $12,450 was 50
percent down on their house.
Smith: They don’t have anything saying it was
down on their house. … There’s nothing
saying that payment was for their house …
*.
Detective: So then basically what’s probably going to
happen is, I’m probably going to have to sit
down … I’ll start going through the stuff
Washington No. 22CA17 36
that they got, and then I’ll call you. And
then- -
Smith: I’m going to pull the file from the church
and everything that will have …
*communications between Susan and Dan,
and I’m going to forward that to my
attorney. …
Detective: [W]hat we’ll do is, if we can arrange a
meeting with you and your attorney, we’ll
just sit down and … see if … we can
hash this out. And … if you can convince
me that the $12,450 payment you received
from them was for the church - -
Smith: Ask Susan by herself.
Detective: - - instead of their house. What’s that?
Smith: I feel like Susan’s an honest woman, but
Dan’s a liar. … Ask Susan by herself if
that payment was to be used for the church I
- - I – between you and me, I – Dan is - -
(End of clip. Recording resumed, playing,
transcribed as follows:)
Smith: - - he lied to my face, he lied to the
company, he lied to his own church. … In
front of the whole congregation behind the
pulpit. Dan Hale is a liar. Susan Hale, I feel
in my heart, that she is an honest woman. *
* *Ask her by herself if that money is to be
used for the church. … Not when she’s
sitting next to her 300 pound husband.
Detective: … [H]ere’s what they told me, that your
last payment, the church was to make to
you, was for the exact amount you owed
them. And when I say owed them it was, it
Washington No. 22CA17 37
was a repayment of $12,450 for the
money that they had already paid you to do
their house.
Smith: They gave the church a loan, because the
church got behind on the money. The church
defaulted, now they’re coming after me. (End
of clip. Recording resumed playing,
transcribed as follows:)
Smith: This is totally- -
Detective: Well if they gave the church a loan, why is
the - - this cashier’s check in your name?
Smith: Well, the churches’ payments come from
multiple sources, and something when you
deal with - - there’s you get checks from
their insurance companies, you get churches
from their mortgage companies - -that’s
where they come, to keep the contract
rolling. (End of clip. Recording resumed
playing, transcribed as follows:)
Detective: All right, Ed. Well, I would gather up
anything you can gather up - -
Smith: I appreciate the phone call.
Detective: … [I]f you can show me something …
for your side, you know, … that’s what I
want to do. And then if you can show me
something then this becomes completely
civil and I’m out of it.
Smith: Fine. Fair enough. … I’ll get my attorney
to review everything and put something
together …. (End of clip. Recording
resumed playing, transcribed as follows:)
Washington No. 22CA17 38
Detective: And they’re … being polite in here, and
they said … we’re not trying to say
anything bad about him, the business, or
anything like that. We just … want our
money back.
Smith: I’m not wrong. I’m not - - and I don’t mean
to sound argumentative, but this just - -
Detective: Yeah, Ed, listen. I just literally, you know,
got this so I … have no judgment on
anybody …. (End of clip. Recording
resumed playing, transcribed as follows:)
Smith: I am no thief, sir. I’ll prove it to you. …
* I’ve been in business for nine years and
I’ve completed every job I’ve ever
contracted. … Sometimes that means I
have to do it myself. I’m in construction.
The crews go belly up, whatever, I don’t.
Detective: Yeah. Okay. All right. Well, I’ll look
forward to hearing from you and you can
give me that information. Okay.
Smith: Yeah. Thank you.
{¶62} Huffman testified that after the initial phone call, Smith
called him once and advised that his attorney would be contacting Huffman
with Smith’s own information regarding the jobs. Huffman testified he
waited nine days until reaching out to Smith again who told him “that is was
civil and hung up on me.” Smith’s attorney never contacted Huffman or
provided supporting documentation.
Washington No. 22CA17 39
{¶63} After this, Huffman contacted the Hales’ witnesses and
obtained a copy of the check. He subpoenaed the financial records for Smith
and Bottom Line Construction and was able to track the check to its deposit
into Smith’s account. Smith’s bank records showed the check was deposited
into an account with Smith’s home address. Huffman also identified Joint
Exhibit 1, the Cellebrite extraction report which reflected text messages
between Dan Hale and Ed Smith. On cross-examination, Huffman admitted
that nothing on the check indicated it was a down payment on the house
job.7
{¶64} The State offered its exhibits into evidence and rested. These
exhibits will be set forth below. Smith’s attorney made a Crim.R. 29 motion
arguing that there was no evidence of a contract between the Hales and
Smith and no evidence that the $12,450 payment to Smith was anything
other than a contribution or loan to the church project. The trial court denied
the motion.
{¶65} The following are summaries of the defense witnesses. The
testimony of Edward Smith was very lengthy and focused mainly upon the
church project and Smith’s displeasure with the funding delays. Smith also
7
The State also presented testimony from Montell Hutchison, a member of the Church council, who sent
letters to Smith on behalf of the Church. Her testimony did not shed light on the dispute between Smith
and the Hales so we have not included it.
Washington No. 22CA17 40
testified about the day the Hales handed him the $12,450 check. We have
attempted to streamline the lengthy testimony, while giving a flavor for what
the jurors experienced at trial. The trial court admonished Smith several
times during his testimony, instructing him to give yes and no answers and
to refrain from arguing with the court or counsel.
1. Edward Smith
{¶66} Mr. Smith testified he is a contractor licensed in Ohio and
West Virginia. He owns Bottom Line Construction, LLC.8 Smith testified
he is not a thief and he did not use the Hales’ money in any way in which he
was not authorized. He takes pride in his work and his business.
{¶67} Smith testified that Defendant’s Exhibit 14 was a description
of the church’s request for replacement of the slate on the bell tower. Smith
testified, however, that upon his inspection of the work, he discovered the
posts upholding the bell tower were rotted and the heavy slate could have
fallen. It was a danger to the congregation and an unhealthy work
environment. Smith told the church trustees that “what you want is to put on
a Band-Aid when you need stitches. You guys want to give it a facelift and I
8
Exhibits 6, 7, 8, 9, 10, 11, 12, and 13 were Smith’s business documents as a licensed contractor. Exhibit 6,
his Occupational Safety Health Administration (OSHA) card; Exhibit 7, First Aid certification; Exhibit 8,
Ohio Bureau of Workers Compensation (BWC) certificate; Exhibit 9, West Virginia contractor’s license
issued in 2016; Exhibit 10, West Virginia contractor license issued in 2018; Exhibit 11, Articles of
Incorporation from the Ohio Secretary of State; Exhibit 12, Application for articles of incorporation; and
Exhibit 13, Ohio Secretary of State document for Bottom Line Construction, an active LLC.
Washington No. 22CA17 41
mean, you need Botox.” Without replacing the posts, he was not interested
in the project. Ultimately, Smith’s bid was chosen, he was given an initial
down payment, and also give various payments by check until funding
became a problem.
{¶68} Smith testified that Dan Hale was dishonest with him about the
church’s loan. Smith explained, “They had been out of money. I wasn’t
going to do any more work until … that issue was resolved.” On January
31, 2017, Dan Hale called him and said he wanted Smith to bring his crew,
“ready to work. … We got to continue this. We’re in this together now.”
Smith testified about the conversation with Hale as follows:
Ed, I’ve got a plan. And Dan had - - Dan was the man. I
mean, that’s exactly what they call him, Dan the man. He
- - if somebody’s got a problem, they go to Dan. He fixes
it. Dan saves the day. At his church, he is looked at as
Dan the man. … *And, I said, Dan, I really don’t think
it’s a good idea for you guys to go further in the hole, and
your loan’s already been denied multiple times for various
reasons that I could get into. They’re a little more detailed
than what he has let on here as well. Nonetheless, he said
that he had considered this and he had a plan. … [H]e
asked me to meet him at the church and he brought his
wife with him.
{¶69} Thereafter, the three met under the car port at the church.
Smith testified:
They wanted me to continue working on the church. Dan
was putting funds into the church out of his own pocket,
and - - because the loan project hadn’t gone through. …
Washington No. 22CA17 42
Out of better judgment, I should have filed suit against the
church and parted ways with them right then. … But
Dan the man and his wife Susan offered to save the day
again. They came up to me, and Susan was on my left and
Dan was on my right. And they were standing side-byside. And Dan had a check in his hand, the check in
question. …[H]e said, hey we’re sorry - - I’m sorry, he
apologized for the delays. The work is looking great. I
really sincerely want you guys to go on. I’ve put a little
money into this project I don’t want everybody to know
about. Okay. He’s like, and I’m willing to put more into
it. … He handed the check … to Susan, and he said,
she has something she wants to say. … People don’t
normally put on a show when they make a payment. But
in this case, they did. … And she said, Ed … we’ve
prayed about this, and we know what we want you to do.
Your guys are here. We have $12,450. How long will that
get us? That’s not a lot of money in the business world
when you’ve got a crew of five guys out there, dump
trailers, mobile office, 120-foot boom lift costing you
$4500 a week. Scaffolding set up for months. … [H]e
didn’t want the project to stop on the church, because then
he would have had to explained to the church that they
didn’t get the loan. And Dan was the man and he didn’t
want to admit to making any mistakes in front of his
congregation.
Smith continued:
In these extraction reports, I mention to him at least once
… that if he doesn’t tell the truth, I will go Sunday
morning myself and I will take the pulpit, or I will stand
outside under the awning and I will let the church
members know that they are out of money and they don’t
have the money to pay for this project. But to forego that,
Dan and his wife said, take this money, continue the
project. The loan will be finalized Thursday, and then we
will get the money back from the church. You can get
your final payment- - your next payment. … And I said,
yeah, Dan, you know, I can do this, but you got to keep the
Washington No. 22CA17 43
checks coming. … But I, I was looking at her, Susan’s
face. And she had this very serious look on her face. She,
she knew what she came to do that day. … I put my
hand out and I took ahold of the check. But in this case,
instead of just handing me a check nonchalantly, she kept
a hold of it. She kept it in her hand. And she said, Ed,
take this, use it this week to keep the project going. We’re
going to get this taken care of on Thursday. Everything
will be worked out. We have prayed about this, and this
is what we want you to do. And she kept a hold of it.
There was a pause. And then I said, okay, that’s what I’ll
do. She released the check. … I said, let’s do it. …
and we worked till … about Friday.
Smith testified, “That’s not the way you make transactions, unless there’s
something attached to it. So they wanted to give the church another loan and
that’s what they did.”
{¶70} Smith testified about his personal dealings and visit to the
Hales’ residence, as follows:
I had been informing Dan that we were … needing
funding, and I believe that was part of his plan. … Dan
told me the work had been done to that point was
“topnotch.” … He said … me and the wife want you
to come up to our house. We got some projects at the
home we want to do and … and we’ve got a plan. …
I will tell you what it is when you get there. Have faith, is
what he told me, because I kind of looked at him with an
eyebrow, and like wait a minute, you’re out of money and
you want to look at another project? And I’m not going to
sign another contract with you that you don’t have funds *
… I won’t make that mistake again … And he assured
me that he would. So I went up and I … met him and
Susan. … I believe Dan showed me some water stains
in his ceiling ….
Washington No. 22CA17 44
Smith identified Defense Exhibit 19, an Eagleview report done on
the Hales’ home.9
{¶71} Smith also identified the estimate (Defendant’s Exhibit 5)
which he provided for the Hales, in the total of $24,900. Smith testified the
document contained no handwriting and was not a contract. He also
identified a copy of the check (Defendant’s Exhibit 20) made to his business
dated January 30, 2017 in the amount of $12,450. Smith testified there was
nothing written on the check to indicate it was for the Hales’ roof job. Smith
testified:
That’s why it raised no red flags to me, as could be
construed as anything else, when it was handed to me - -
and I was told to take this and use it to go through Friday,
and it was held onto on the other end and a big deal made
out of it, I had absolutely no wild imagination, idea, that
this would ever come back because of later unsatisfaction
[sic] to be accused of as a criminal accusation. … Susan
did her song and dance with the check, and then Dan, he
kind of led the conversation again. He told me the loan
was going to be completed by Thursday, and that would
get us a day past when the loan came through, which gave
them time to go to the treasurer and the chairman and get
another check wrote. He also expressed he wasn’t worried
about, like, that next check coming back to him. He was
just going to get that later from the church. After
everything was said and done, and his main concerns were
not letting the church know that he had invested personally
in there. He - - he had mentioned that he already had, they
knew a little bit, but he just didn’t want the church to think
9
Smith testified Eagleview is a resource for roofers and construction workers, an aerial measurement
platform which measure projects. Smith used the resource to prepare his estimate for the Hales.
Washington No. 22CA17 45
he was funding the full project. In actuality, he didn’t want
to be honest with the congregation that its loan had fallen
through, because they hadn’t been keeping correct
paperwork for years.
…
My understanding was … the loan that he had put in it
to extend our work for that week, him and Susan, up until
the loan was supposed to finalize, which ultimately fell
through again, being $12,450 ….
{¶72} Defense counsel led Smith through Joint Exhibit 1, adducing
testimony about various text conversations between Smith and Dan Hale
regarding both the church project and the Hales’ roof job. Again, we have
attempted to streamline the testimony. However, we believe inclusion of
much of this testimony demonstrates the acrimony of the situation. The
testimony also aided the jury’s evaluation of credibility and resolution of
conflicts in the evidence.
{¶73} Smith testified text number 366, dated March 1, 2017, again
discussed the church’s funding problems. They were going four months into
the project with no money borrowed. Smith testified that Hale was saying:
“I understand. I am just trying to help you the best way I can. … I hope
you know I’m doing damage control with more people than you may know.”
Smith testified regarding text No. 400 as follows:
It’s from Dan to me, making excuses about why he doesn’t
have the money. … They’re reasons. But that should
Washington No. 22CA17 46
have been handled beforehand. It says - - it’s him to me,
asking me if I can give him some time to deal with this
tomorrow. … And what it was in regards to was when -
- when I first went out to do the estimate for the Sand Hill
United Methodist Church, he told me, he’s like, he, we’re
getting bids right now and we’ve got - - we bank with
Williamstown First National. … And he said, we just
finished a job with a contractor for the main body of the
roof. It was in excess of $300,000. And we just paid this
loan off. Our credit is solid. Normally, like, why even
talk to somebody that doesn’t have financing yet, other
than a preliminary? But he said, his financing was solid,
and we’re going to go ahead and write this up and he’s
going to get me the - - money.
Smith continued:
And then he told me he had the money, …
Williamstown National Bank had secured them a loan. I
found out later, obviously, they hadn’t. … But I later
found out, they closed that loan ten years prior to my
estimate on this project. The way banks operate then …
* had nothing to do with the name changing. Had them,
everything to do with them trying to get a church loan in
the name of - - with the business repaying it. They were
trying to use their daycare as their guaranteed source of
repayment, but trying to use the benefits of the church so
they didn’t have to pay any interest. And there was some
title issues because of that … That’s what I later came
to learn.
…
So for the first time in my life, I’ve been hired into a
contract that is legally binding. That the customer doesn’t
have - - it’s part of my prescreening; the customer didn’t
have the funds to complete the project. Hired us to do a
project they could never afford in the first place, and then
begged, borrowed, and stole from every account they had
- - their air conditioning fund, their vacation bible school
Washington No. 22CA17 47
fund, their window fund - - and drained all of those funds
making payments over this process, waiting for this loan,
using accounts from this place to pay that line and vice
versa. And it was a financial fiasco. And I was having
trouble justifying staying with these people and not - -
Whether, - - yes, whether I’m out there- - even a rainy day
costs me money. All that equipment sitting there, all the -
- tools, the trailers. … .
{¶74} Smith next read text numbers 429 - 431, dated March 13,
2017, from Dan Hale’s number to Smith’s number explaining about the loan
delay. Smith testified about his response:
I’ll read it verbatim. I hate to say it, but I fear it’s time you
start looking for another source of funding. We’re going
to need paid this week. … I’m sorry, but this has been a
whole lot of trouble for a loan that wasn’t supposed to be
any trouble. And I’m really stressed out.
{¶75} Smith testified regarding text No. 441:
We’re on strike. That’s what it says. It says, I’m taking
the crew - - from me to Dan. I’m taking the crew to go - -
tomorrow, to go secure another job where some shingles
blew off a church. … And he responded ….
Remember, I’ve got 17 grand in this myself. Until this
loan goes through, wife and I are trying to make sure we
have the money before you come to our place. Because
again at that point, he was telling me that he didn’t have
the money to - - that was March 13, 2017, and he was still
telling me that he did not have the money to engage on his
home … to sign that into contract, … [on their home.]
{¶76} Smith testified regarding text numbers 497-502, near the end
of March 2017:
Washington No. 22CA17 48
So this is Dan from me. … I was pretty distraught. …
* I, being transparent again, instead of just going to a
lawyer and slapping them with a breach of contract
lawsuit, taking the money they had paid to that point,
leaving the material in the yard, and going my separate
way, I was still trying to work with them, still trying to see
them through to the end. But I told him at this point, that
I don’t like the situation at all. … It’s slowing down the
rest of my year.
{¶77} Smith testified regarding text number 512, in April 2017:
This was a nightmare. After all that, Dan tells me that this
loan is shot. … Like, they are starting over. New
attorney, new title on the … church. And I said … so
by starting over, are we talking like another three months,
or … I mean, I really needed that answer. … I …
couldn’t hang out with them people for three more months.
… So I wasn’t going to go out and work for free for
three more months and not be paid. … [a]nd my crew
would have been in the same position.
{¶78} Smith described the next series of texts number 524-528,
which discussed the Hales’ home roof project, and explained the situation
near the end of April 2017:
Okay. So Dan … tells me that … we were talking
about the project that would transpire at his home. And
this is the first - - April 29th, we’re going into May. He
asks - - he tells me, you took our money and I assume
cashed it. That’s all we have, other than a verbal
agreement. I mean. Then he says he wants something in
writing, and I told him, I - - I sent him an estimate back
then. He referred to it as a contract in the text messages,
but that’s referred to. What’s legal on the contract is a
different story. So he asked me for - - for something in
writing, and I asked him if I had already given him one,
which I believed … I had. And he said no. And I told
Washington No. 22CA17 49
him I’d get him one next week. Again, it wasn’t like there
was a rush on it. We didn’t have a contract so I’d get him
a copy of that estimate I had prepared, and then if he
wanted to make any alterations, changes, additions, or
subtractions, he could have done so. I would have
finalized the price. At this point, I would not have engaged
in the residential contract with him, had he not secured the
funding for the initial project he had signed and this one,
and would have had to have proven that to me, that he had
them at this point, because I - - I’m obligated and stuck in
with the church, but I’m not obligated and stuck in with
his residential. So I wasn’t ready to - - and I wasn’t going
to sign anything into contract with him until he could
satisfy that.
{¶79} Regarding his business relationship with John Monk, Smith
testified:
John Monk is part of my team. … I do massive projects
and I don’t do any of that by myself. … [W]e had built
a friendship over our common interest in the industry …
*. So with John, … we don’t necessarily have a binding
contract or anything in paper. … When I call them and
tell them there’s work to do, they react. And likewise, they
don’t have any reason or cause to hold me up for a contract
of any kind, because as everyone testified, I pay my bills
on time at the time of service.
{¶80} At the close of his direct testimony, Smith testified he still
owns his construction company and has clients, despite the five years of
prosecution. He testified he did exactly what the Hales instructed him to do,
which was continue the furtherance of the church project and “keep their
secret.”
Washington No. 22CA17 50
{¶81} On cross-examination, Smith admitted that State’s Exhibits F-1
through F-8, the checks paid from the church to Bottom Line Construction
totaled $75,000, and that none of the church’s checks were dishonored.
Smith denied that the total cost of the project was $87,450 with a balance
due to him of $12,450 although the church’s payments including $12,450
totaled $87, 450. The following cross-examination took place:
Q: Well, wasn’t there a meeting at some point at the
church that you were invited, and you came to the
meeting to discuss what the final payment would
be when you completed the job?
A: I think at that point in time, I had attended a couple
of meetings to discuss their obligations and my
obligations. … to finalize the job. I’m not sure
any final payments or whatever were discussed or
any figures were exchanged there. It was mostly
about them getting the money.
Q: And you had mentioned, I think at that meeting,
that there was a need for you to get $10,150 and
you would leave a total of $12,450 left, still
due to your company when the job was completed.
Do you admit or deny that conversation?
A: So I don’t think it was me saying I needed that. I
believe that’s what they were offering at that time
to continue moving forward and they chose to
withhold that amount, which - -
Q: Well, they didn’t withhold the entire - - they
actually paid you on September 14th $10,150.
Correct?
A: And withheld out of that last payment $12,450.
Washington No. 22CA17 51
Q: All right. Now I’m going to, sort of a million
dollar question. No, it’s not a million dollars, it’s a
$12,450 question. … Because your testimony is
that the Hales had given you $12,450. Back in
January of 2017 to go toward the church job.
A: Okay.
Q: Right?
A: Right.
Q: So if that’s true, and we take the eight checks that
the church paid you, and add in that $12,450. You
could have said, well, wait a minute. The Hales
have already given me $12,450, so church, you’re
paid in full.
A: No.
Q: Well that’s what the math is.
A: From you - - the way you’re trying to twist it,
yeah. But no.
Q: Now, so in point of fact, you’re calling that
$12,450 that the Hales gave you in January not a
down payment on their home roof job, and not a
business expense for the church; it was a gift to
you.
A: No. No, no, no, no, no.
Q: That’s what you’re saying.
A: No. It- - I have said multiple times, it was to
extend that week of work on the church.
Q: But that’s not reflected in anything you presented
Washington No. 22CA17 52
to the church, because you, after all the payments
that were received by the church,
A: Dan kept that separate. He had - -
Q: You - - you - -
A: Dan kept - -
Q: You didn’t offer - -
A: Do you want me to explain that?
Q: - - and say, well, then that $12,450’s been paid
already, so the church owes me nothing.
A: That’s not exac - -
Q: I just have to finish the job.
A: No. That wasn’t exactly the case.
Smith continued:
Why would I continue to finish that - - project, when they
couldn’t make any more payments. They couldn’t repay
the Hales. Then the Hales, you know, their - - their idea
was that when they did get repaid, they would have the
money then to be able to sign into contract that estimate
and then we would complete that project as well. At that
point, that was still the plan. He had never told us not to
do his - - his - - his house at that point. And when the
church finished and finally made their last payment, then
Dan could have signed his into contract. … But that - -
that was not - - that opportunity was not awarded to me to
make it that far. And Dan is the one that made that call
and severed that ability.
Washington No. 22CA17 53
{¶82} Smith was cross-examined about Joint Exhibit 1, line 523, a
conversation about the Hales’ roof job as follows:
Q: It’s to Dan from you.
A: Correct.
Q: Correct. And doesn’t that say, did I not give you a
copy yet?
A: Yes.
Q: And that was in response to the immediate prior
question of his about wanting a contract.
A: Right. Well, he called it a contract.
Q: And - -
A: It had not been signed in yet, but I thought he
meant the estimate, so I said, did I not give you a
copy yet, and I told him I’d get him one next week.
I mean, if it was a contract, I’d email it to you
now, because I’ve got a copy of it.
Q: All right.… *Again, will you agree that that’s to
Dan Hale from you, Ed Smith?
A: Yes.
Q: And would you agree that it says, I would have to
look it all up, but I did type up a contract for your
roof back when we agreed to it, that I have a copy
of, yes. Will get you a copy next week. It doesn’t
say, estimate. … I’m asking you if it says that.
It doesn’t say estimate. It says - -
A: I did repeat the exact phrase he used above, and
that was my one clerical error, yes.
Washington No. 22CA17 54
{¶83} The prosecutor also adduced the following testimony on cross-
examination:
Q: [I]n the contract work, the - - just somebody
signing it wouldn’t have been enough. you needed
the 50 percent down. You needed that check for
$33,100?
A: Yeah, yeah.
Q: Before you were going to consider it a contract?
A: Correct. … I had given them an estimate prior to
that but it wasn’t a contract till they got the money.
2. Joshua Green
{¶84} Mr. Green testified he lives in a very old large brick house once
badly in need of repair. It is now on the National Register of Historic
Places. Mr. Green hired Smith and Bottom Line Construction Company to
complete two roof jobs for him.
{¶85} Green testified the relationship with Smith and his company
was “fine,” and “everything proceeded as well as it could, given the weather
conditions and labor conditions during the COVID thing, and we didn’t have
any disagreements over any aspect of the construction project.” Green
testified he had a signed and initialed written agreement detailing the work
that was done. The contract was separated into logical construction phases
Washington No. 22CA17 55
with payments listed for each phase. As each one was accomplished, Mr.
Green’s wife would issue a check.
3. John Monk
{¶86} Mr. Monk testified he was a retired coppersmith. Monk
explained that he noticed Smith’s business signs, heard about Smith doing
copper roofing, and struck up a friendship. Sometimes Monk received scrap
copper from Smith, which he had from jobs. Smith started asking Monk for
specific work to help him with jobs. Monk never had problems with Smith
fulfilling his financial obligations.
{¶87} Monk made clips to hold gutters, finials, and a cross and cap
for the church steeple at the Sand Hill United Methodist Church. Monk
donated his time working on the cross and only requested money for the
material. On cross-examination, Mr. Monk testified he is a Methodist and
really liked the idea of doing a cross for the church. He had no idea if Smith
passed the cost of his time for the cross onto the church. Monk testified he
never had a written contract with Smith, it was all done on a handshake.
4. Rick Dostal
{¶88} Mr. Dostal, a building official for Washington County
Building Department, manages permit processing and commercial and
residential inspections for construction requiring a permit within the city
Washington No. 22CA17 56
limits of Marietta. Mr. Dostal recalled that Smith obtained a permit for
repairing the steeple on the Church. Dostal also hired Smith to install
gutters on his house because Smith did good work. Dostal had no problems
with Smith and the financial arrangements.
5. Danielle Oliver
{¶89} Ms. Oliver and Smith are longtime friends. Oliver testified the
Hales were going onto Smith’s business page on Facebook and saying that
he was a scammer, a con artist, and to stay away from him, “he’s bad
business.” Oliver testified “they were very rude on their posts. They were *
… saying like very vulgar things, just like basically criminalizing his
business,….”
{¶90} The following exhibits were admitted or discussed at trial:
State’s Exhibit A Cashier’s check for $12,500 written to Ed
Smith-Bottom Line Construction. (Also
Defendant’s Exhibit 20).
State’s Exhibit B Estimate for the Hales’ home roof project (Also
Defendant’s Exhibit 5).
State’s Exhibit C The top of the steeple, attachment completed by
another company. John Monk testified he made
the cross and cap for the steeple.
State’s Exhibit D Completed photograph of the steeple. Smith
did not complete the work. Rick Dostal testified
he inspected the work.
State’s Exhibit E-1 Estimate for the church project, dated November
Washington No. 22CA17 57
22, 2016 (Also Defendant’s Exhibit 1).
State’s Exhibit E-2 Same estimate for church project as E1, with
an additional $6,000 if porch is rebuilt on
church (Also Defendant’s Exhibit 3).
State’s Exhibits F1-8 Checks paid to Smith and Bottom Line
Construction from the Church. Testified
to by Eric Knowlton.
State’s Exhibit H Letter prepared by Montell Hutchison on behalf
of the church council to Ed Smith.
State’s Exhibit I Letter to Ed Smith from church voiding the
contract with Smith because work had not been
performed since previous letter.
State’s Exhibit J Copy of letter from Hales to Smith requesting their
$12,450 back.
State’s Exhibit M Church council minutes dated November 14, 2016.
Was not admitted into evidence.
State’s Exhibit N Recorded phone call between Detective Huffman
and Ed Smith.
Joint Exhibit 1 Cellebrite extraction report containing cell phone
text messages between Dan Hale and Ed Smith.
Defense Exhibit 1 Original estimate to church for $60,200 for
steeple project.
Defense Exhibit 2 Document showing Smith was given an extra
$15,500 for work in addition to the original
estimate.
Defense Exhibit 4 Check numbers for $4,500 for rental of a
boom lift and for $1,250 for rental of
metal support jacks, paid to E.S.
Washington No. 22CA17 58
{¶91} In closing, the State argued that the theft occurred because the
Hales gave Smith the check for $12,450 as a down payment on the roofing
job at their home, and since Smith did not perform work, purchase materials,
or return the check, under the law Smith kept the down payment check
beyond the scope of the express or implied consent of the Hales. The State
emphasized that any disagreement between Smith and the church was an
entirely separate matter and not the issue for consideration. The prosecutor
pointed to Karen Brown and Rick Carpenter’s testimony in particular.
{¶92} The defense argued in closing that the evidence showed that the
money paid to Bottom Line Construction was paid to be used toward the
church project, not Dan and Susan Hale’s job. Defense counsel argued there
was never a contract between the Hales and Smith and nothing in the
documents provided by the church reflected anything about the money being
owed to the Hales. Defense counsel pointed out that Susan Hale was present
at the trial but didn’t testify and argued, “I submit to you that, as Mr. Smith
said in his interview with the detective, that Mrs. Hale is a good woman, an
honest woman, and she couldn’t get up here and lie on the stand for her
husband.” Defense counsel attacked the credibility of Pastor Carpenter, Eric
Knowlton, and Karen Brown arguing that there was no documentation to
support their testimony. Counsel continued:
Washington No. 22CA17 59
There’s a lot that was made by the state over Ed Smith using
the word “contract” in some text messages where Dan Hale,
towards the end of this relationship, … Dan Hale was
saying, well, where’s that contract. And Ed’s like, I don’t
know where the contract is. You know, I’ve got to go look
for it. I’ve got to find it. You can’t take from that in that
situation, just read it, you can’t take from that that Ed Smith
is agreeing there’s a contract. … You can size up Ed
Smith from his testimony, … and his credibility from the
evidence that you saw today about his business how long
he’s been in business and the things that people indicated
about it. You can also judge him on how he did business,
what he testified about, about how he enters into contacts
with clients, the steps that he took, the things that he
specifically did on all of his cases to make sure things were
done properly. You can easily size him up by his sincerity
in the stand. … The State’s trying to confuse you a little
bit … they’re just totaling up these numbers and saying,
well, there’s $12,450 extra, so that should have been given
back to the Hales. But they’re not counting the extra work,
the extra time, the extra things that had to be done, and the
fact that this money was given to him to be able to do those
things, to keep those guys on that project …. At best, this
is a civil dispute between two private parties.
The State’s rebuttal argument will be discussed below within assignment of
error three.
{¶93} This court has considered Smith’s claim that his theft
conviction is against the manifest weight of the evidence. In doing so, we
have examined the entire record, weighed the evidence, and considered the
credibility of the witnesses. By the voluminous testimony which we have
set forth above, it is obvious the jurors had much to consider in their
deliberations. We are mindful that the jurors were in the best position to
Washington No. 22CA17 60
determine the credibility of the witnesses and to resolve any conflicts in the
testimony.
{¶94} What the jurors may have found less than convincing was
Smith’s characterization of the texts on Joint Exhibit 1, near the end of April
2017, regarding a contract. As discussed above, Mr. Hale testified Smith
and he were discussing the Hales’ home roof project. Mr. Hale read line
523, as a response to his request to Smith for a contract, as follows: “Okay.
This is from Ed to me. Did I not give you a copy yet, question mark.” The
prosecutor later cross-examined Smith beginning at Line 523 on Joint
Exhibit 1, text reads on Line 525: “I would have to look it all up. But I did
type up a contract for your roof back when we agreed to it, that I have a
copy of, yes.” Smith’s testimony which followed was that “he called it a
contract.” Smith continued, “I did repeat the exact phrase he used above,
and that was my one clerical error, yes.”
{¶95} Smith’s attempt to downplay his reference to any “contract” as
a clerical error is in contrast to his attempt to bolster his case and
demonstrate his usual professional business practices and relationships
through the testimony of Joshua Green and Rick Dostal. Furthermore, Smith
testified on cross-examination, albeit regarding the church project, that “I
had given them an estimate prior but it wasn’t a contract till they got the
Washington No. 22CA17 61
money.” This testimony suggests Mr. Smith’s belief that a contract is
indeed formed when there is money placed as a down payment. The jurors
also apparently found believable Karen Brown and Pastor Carpenter’s
testimony that they understood that Smith was to pay the Hales $12,450
once the church project was concluded.
{¶96} Based on the evidence in this matter, we cannot find that the
jury clearly lost its way and created a manifest miscarriage of justice
requiring reversal of Smith’s conviction. Therefore, we do not find that
Smith’s conviction is against the manifest weight of the evidence. The
eighth assignment of error is without merit. Furthermore, having found that
the conviction is not against the manifest weight of the evidence, we
necessarily find that sufficient evidence supports his conviction. Thus, the
seventh assignment of error is also without merit. Both assignments of error
seven and eight are hereby overruled.
ASSIGNMENT OF ERROR ONE - PROSECUTORIAL
MISCONDUCT AND BRADY VIOLATION
ASSIGNMENT OF ERROR TWO - TRIAL COURT’S
ERROR IN FAILING TO ORDER APPELLANT’S
PROPERTY RETURNED TO HIM
A. STANDARD OF REVIEW - BRADY MATERIAL
{¶97} One of the purposes of Crim.R. 16 is to provide all parties in a
criminal case with the information necessary for a full and fair adjudication
Washington No. 22CA17 62
of the facts. Pursuant to Crim.R. 16(B), all attorneys are under a duty of due
diligence, and prosecutors are to provide or to permit copying of information
material to the preparation of a defense or intended for use by the
prosecuting attorney as evidence at trial. Id. A criminal defendant's due
process right to a fair trial is violated when the prosecution withholds
materially exculpatory evidence. State v. Blanton,
2018-Ohio-1278, ¶ 88
(4th Dist.); Brady v. Maryland,
373 U.S. 83, 87 (1963); State v. Geeslin,
2007-Ohio-5239, ¶ 7; State v. Johnston,
39 Ohio St.3d 48, 60 (1988). In
order for this court to find a Brady violation, Smith must establish that (1)
the suppressed evidence is favorable to him, “either because it is
exculpatory, or because it is impeaching”; (2) the evidence was suppressed
by the State, “either willfully or inadvertently”; and (3) that “prejudice …
ensued.” State v. Bethel,
2022-Ohio-783, ¶ 19, quoting Strickler v. Greene,
527 U.S. 263, 281-282 (1999). The defendant bears the burden of proving
that a Brady violation rises to the level of a denial of due process. State v.
Allen,
2016-Ohio-7045, ¶ 11 (8th Dist.). [F]avorable evidence is material,
and constitutional error results from its suppression by the government, “if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”
Bethel at ¶
19, citing Kyles v. Whitley,
514 U.S. 419, 433 (1995), quoting United States
Washington No. 22CA17 63
v. Bagley,
473 U.S. 667, 682 (1985). Whether withheld evidence is material
under Brady is a matter of law for which the de novo standard of review
applies.
Allen at ¶ 11. De novo review requires an independent analysis of
the record without deference to the trial court's decision. Demeraski v.
Bailey,
2015-Ohio-2162, ¶ 11 (8th Dist.).
B. LEGAL ANALYSIS
1. Electronic devices.
{¶98} Smith contends the State committed prosecutorial misconduct
by a violation of Brady when it refused to turn over his seized property―
electronic devices containing exculpatory evidence necessary to his defense.
These devices were his iPhone, iPad, and Apple Mac computer. In his brief,
Smith describes these devices as containing “material that was critical for
either disclosure or review …. Specifically, emails and text messages
with the church that go to the crux of Mr. Smith’s defense, including his
ability to provide a proper timeline of events.” Based upon the following,
we disagree that the prosecutor’s actions amounted to misconduct or a Brady
violation.
{¶99} The record reflects that on December 16, 2021, counsel filed a
Motion to Disqualify Prosecuting Attorney and Motion to Return Seized
Property. At the time, Smith acknowledged that his devices had been seized
Washington No. 22CA17 64
pursuant to a search warrant originating from and executed within Noble
County, where Smith resided. Smith has not challenged the lawfulness of
the search warrant. Smith’s initial motion sought return of these items on
the basis that they contained privileged material between himself and his
attorney.10 Smith’s counsel argued that even if the information obtained
from the devices was not used by the State at trial, the information would
provide access to the defense theory of the case.
{¶100} On December 27, 2021, counsel filed another Motion to
Compel Return of Defendant’s Laptop and Phone, again arguing that the
devices contained privileged material critical to preparation of his defense.
In the motion, Smith stated that the information obtained by the Noble
County search warrant had been communicated to the Washington County
Prosecutor. The trial court addressed the December 16, 2021 motion at a
January 4, 2022 hearing, finding as follows:
The Court finds that none of the property seized from
Defendant pursuant to a Search Warrant issued in Noble
County, in 2021 and that none of the information obtained
from that seized property pursuant to a Search Warrant
issued in Washington County, Ohio, will be used as
evidence in the instant Case against Defendant Smith.
Therefore, the Court DENIES Defendant’s Motion for the
Return of Seized property from Defendant by the
Washington County Sheriff.
10
Smith also noted that he was the subject of cases in Noble County which involved the Washington
County Prosecutor, Nicole Tipton Coil, as an alleged victim of crime and for that reason, sought her
disqualification in his Washington County theft case.
Washington No. 22CA17 65
{¶101} On June 6, 2022, counsel filed a Second Motion to Compel
Return of Defendant’s Laptop and Phone.11 Smith again asserted that these
devices contained information necessary to assist him in preparing for trial,
and possible impeachment evidence. For the first time, Smith alleged a
Brady violation. At hearing on this motion on June 8, 2022, defense counsel
argued:
[I]’ve been trying to get these things back for some time,
and the Court gave me time to get it back the last time, and
I’ve just struggled to try to get anything back. And you
know, from my client’s perspective, that it’s a strategic
device being employed by the State to keep him deprived
of information that’s potentially helpful in his defense and
potentially exculpatory. I can’t tell the Court, because
I’ve never gone through all these devices, exactly, what’s
on them. I can tell the Court what my client believes is on
them, which is, you know, business records, things that
document the things that were going on at the time of this
case, that would be helpful in defense. But you know, I
don’t have real specifics about them because I haven’t
seen them. … It’s been nine months since they’ve been
seized. There’s been no criminal charges forthcoming. *
… I mean, nothing is happening with these devices, and
yet I still can’t get either the information from them or the
devices themselves to use in my client’ s defense. … It’s
my understanding that the information was downloaded
and it was sent with the devices to the AG’s office.
{¶102} The State responded that if needed, two officers would testify
that they had conversations with Attorney Summers and with the defendant
11
Although the motion is captioned as a second motion, it is actually a third one.
Washington No. 22CA17 66
that if Smith would provide the passwords, they could download the
information, copy it, and give the devices back, “and they’ve refused to do
that.” The prosecutor indicated that the computer was with the FBI office in
Athens and the devices were in the Sheriff’s Office but the Attorney General
wanted to hold them as evidence. In the meantime, the prosecutor expressed
concern that “if the items were returned to Smith, he would delete items
critical to the investigation. … There were ways to accomplish what
defense counsel wanted to accomplish, but he hasn’t done so although he
had six months.” By Journal Entry of June 22, 2022, the trial court denied
Smith’s motion.
{¶103} As part of the State’s response on appeal, the State points out
that Smith’s first attorney provided discovery responses on May 22, 2020
and June 3, 2020, which included copies of various business documents and
correspondence between Bottom Line Construction and the church. Yet
Smith’s response did not include copies of any emails or text messages. The
prosecutor also pointed out that Smith’s trial attorney was appointed on July
23, 2021, and Smith’s devices were not seized until October 14, 2021.
Moreover, the State contends that Smith has not shown how the evidence on
the devices is exculpatory and would tend to exonerate him.
Washington No. 22CA17 67
{¶104} We agree with the State. First, we cannot find that the
evidence contained on Smith’s devices was willfully or inadvertently
suppressed by the State, as it appears that Smith retained possession of his
devices subsequent to his indictment in September 2019 and prior to the
October 14, 2021 execution of the search warrant, over a two-year period.
Common sense would indicate that Smith should have reviewed his devices
for materially exculpatory information at some point during that time period
and especially, once his first trial date was scheduled for March 19, 2020.
Even after the property was seized, the record indicates that Smith was given
opportunity to work with the State to retrieve the information contained on
his devices and failed to make any attempt.
{¶105} Key, however, to resolution of this issue is that Smith has not
established that the evidence he claims was on his devices was favorable to
him, i.e., is materially exculpatory. Smith’s attorney argued that he himself
was not aware of what was on the devices. Smith has not shown that the
evidence constitutes impeachment. Without more, we are left to speculate
whether the evidence complained of would be exculpatory to Smith. See
State v. Jennings, 2000 WL 873390, *4 (5th Dist.) Under these
circumstances, we cannot find a Brady violation as a result of the State’s
conduct.
Washington No. 22CA17 68
2. Church meeting minutes.
{¶106} Smith also contends the State violated the discovery rules and
Brady by withholding documentation of minutes from a meeting at the
church, State’s Exhibit M, which bore directly on the issue of his guilt and
of the credibility of the State’s key witness, Dan Hale. Smith directs us to
Hale’s cross-examination when defense counsel asked Mr. Hale if he had
any documentation confirming he had made a loan to the church. On re-
direct, the prosecutor used the church meeting minutes to refresh Mr. Hale’s
memory. Defense counsel argued if the document had been disclosed, it
would have changed a significant part of his defense. Counsel argued, “[I]n
my opening statement, I indicated that the sum total of the money that we
believe Dan Hale gave to the church was $16,000 … almost $17,000 …
*. So If I’d have known that then, I’d have never made that argument.” As
the State has pointed out, Smith did not object so we review the alleged
violation for plain error.
{¶107} The matter was taken up at sidebar. This exchange occurred:
Prosecutor: Mr. Summers asked as part of his cross-examination about an actual document, did Mr. Hale
have, confirming that he had made a loan with the church
since he testified about that. There’s been testimony
already from Eric Knowlton that the church got money
from him and the church paid him back, but there’s been
Washington No. 22CA17 69
no documentation of it. … I understand Mr. Summers
is going to object because he did not get it in discovery,
and that’s correct.
The Court: So you believe there was no loan from
Mr. Hale to the church?
Atty. Summers: I question whether or not there was this
loan. I know that he gave money to the church on several
occasions, and loaned money out to cover the church, but
this document, I didn’t have.
{¶108} The transcript reflects that the Prosecutor represented to the
court that the information contained in the document was part of the police
report, which was copied and supplied to defense counsel, but not the actual
document that constituted State’s Exhibit M. The Court seems to indicate it
did not find the exhibit problematic, stating:
I think … based on the representation that those
minutes were given in discovery and also the fact that
they were mentioned in somebody’s direct examination *
… that the family was going to loan … that the Hales
did. … But I think at this point, to avoid any unfair
prejudice to the defense, I’m not going to admit this. But
I believe you can ask him about those minutes and the
loan made to the church.
{¶109} When Dan Hale testified on redirect, he reviewed Exhibit M
and acknowledged it was the church meeting minutes dated November 14,
2016. Reading verbatim, Mr. Hale testified:
We need $16,100 to make the down payment. It was
announced that a family from the church will loan $17,000
through a home equity loan to the church so we can make
Washington No. 22CA17 70
the down payment by December 1. … A letter of
agreement for the family and the church was requested to
be notarized.
{¶110} Based upon our review of the entire trial transcript, we do not
find this document to be materially exculpatory evidence. Rather, the
testimony regarding State’s Exhibit M demonstrates that the information
contained in the exhibit was cumulative to an extrinsic matter, the Hales’
loan to the church for the down payment on the church’s contract with
Smith. Mr. Hale testified on direct that he and his wife loaned the church
money for the initial down payment to Smith. Eric Knowlton also testified
to this knowledge. The Hales’ loan of money to the church on the church’s
contract with Smith has nothing to do with the Hales’ accusation of theft of
$12,450.
{¶111} Moreover, the Supreme Court of Ohio has held “ ‘Brady is not
violated when disclosure occurs during trial, even when disclosure surprises
the defendant with previously undisclosed evidence. … In such a
circumstance a trial court has authority, pursuant to Crim.R. 16[(L)(1)], to *
… make other orders that the court deems just to ensure that the recently
disclosed information can be evaluated, and used at defense counsel's option,
before the trial is concluded.’ ” State v. Brown, 2023-Ohio-3017, ¶ 54 (11th
Dist.), quoting State v. Iacona,
93 Ohio St.3d 93, 100 (2001).
Washington No. 22CA17 71
{¶112} At the sidebar conference discussing Exhibit M prior to its use
at trial, defense counsel advised the trial court that he knew the Hales had
loaned money to the church on prior occasions. In fact, in his opening
statement, defense counsel used the numbers “$16,000 or $17,000.” That
the number was set forth in the church meeting minutes cannot have been
previously unknown to Smith and his counsel. Thus, Smith’s defense
strategy would not have been prejudiced by the State’s failure to disclose the
document. Based upon our review, we cannot find a Brady violation
prejudicing Mr. Smith.
{¶113} Based upon the foregoing, we find no merit to Smith’s first
assignment of error. It is hereby overruled.
C. STANDARD OF REVIEW- RETURN OF PROPERTY
{¶114} Smith asserts that the trial court erred by failing to order that
his electronic devices be returned to him. His first two motions for return of
his property, an iPhone, iPad, and Apple Mac computer, characterized his
arguments as claiming a violation of the discovery rules. As noted above,
the trial court may make orders regulating discovery pursuant to Crim.R.
16(L). “[A] trial court must inquire into the circumstances surrounding a
discovery rule violation and, when deciding whether to impose a sanction,
must impose the least severe sanction that is consistent with the purpose of
Washington No. 22CA17 72
the rules of discovery.” Lakewood v. Papadelis, 32Ohio St.3d 1 (1987), at
paragraph two of the syllabus. A trial court has discretion in determining a
sanction for a discovery violation. See State v. Lincoln, 2018-Ohio-1816, ¶
17 (4th Dist.); State v. Parson,
6 Ohio St.3d 442, 445 (1983). A trial court
abuses its discretion when it makes a decision that is unreasonable,
unconscionable, or arbitrary. State v. Adams,
62 Ohio St.2d 151, 157
(1980). Here, as previously discussed, the trial court inquired into the
circumstances surrounding the State’s alleged violation of the discovery
rules and did not find a violation. While the prosecutor represented that the
State did not intend to use the materials on the devices as evidence, the
devices are fairly described as potential pieces of evidence. It is well-
established that evidentiary rulings are also within the sound discretion of
the trial court. See State v. Thompson,
2018-Ohio-4690, ¶ 17.
D. LEGAL ANALYSIS
{¶115} As noted above, as to the first two motions, the trial court
found that none of the property seized by search warrants in Noble and
Washington Counties was going to be used as evidence in Smith’s theft trial
herein. R.C. 2981.11(A)(1) provides:
Any property that has been … seized pursuant to a
search warrant, … and that is in the custody of a law
enforcement agency shall be kept safely by the agency,
pending the time it no longer is needed as evidence or for
Washington No. 22CA17 73
another lawful purpose, and shall be disposed of pursuant
to sections 2981.12 and 2981.13 of the Revised Code.
Smith has not disputed that his devices were seized pursuant to a search
warrant properly issued in a criminal investigation. In State v. Bates, 2021-
Ohio-1397 (6th Dist.), Bates sought return of his laptop computer that had
been seized in the execution of a search warrant. Bates’ indictment had been
dismissed without prejudice. Bates’ petition for return of the computer
occurred several months after the dismissal.
{¶ 116} Citing R.C. 2981.11(A)(1), the Second District Court noted:
Although this provision is part of the law of forfeiture, it
is applicable to any property seized in the execution of a
search warrant and held prior to its final disposition. It also
sets circumstances during which such property should be
held. If an item is potentially needed for evidence or for
some other lawful purpose, it may be held. Alternatively,
if the item is no longer needed, it may be returned or
otherwise disposed.
Bates, at ¶ 14. The court continued:
Logically, items being held as part of a criminal
investigation are being held to be used as evidence or for
the lawful purpose of assisting the investigation. If, during
consideration of a motion for return of property, the court
properly finds that seized property is being held for
evidence or as part of an ongoing investigation, it may
properly deny the motion.
Washington No. 22CA17 74
Id., at ¶ 15. The Bates court held that since the computer at issue was being
held for evidence and to aid an ongoing investigation, the court was within
its discretion in denying the motion for its return.
{¶ 117} The trial court denied Smith’s third motion, finding as
follows:
With respect to the motion to return the electronic devices,
… those are at least in the custody of, allegedly, the FBI,
Washington County Sheriff, but at least under the auspices
of the Attorney General’s Office - - for that part of the
investigation, and … they’re not a party to this case, so
I don’t have the jurisdiction to order them to return to me.
… Furthermore, it sounds to me like … if the
passwords were given, those devices could have been
copied and they could have been … back in your hands
for review.
Based on our review of the record, we find the trial court did not abuse its
discretion in denying Smith’s motion for return of his electronic devices. At
the time of Smith’s request, it appears that the property was still being held
by the Attorney General’s Office for a lawful purpose, an active
investigation. As previously discussed, Smith has not shown that
information contained on his devices was materially exculpatory.
Furthermore, as previously discussed, it was Smith’s own lack of diligence
in retrieving the information long before the first trial date was established,
along with his later lack of cooperation in providing passwords, which could
have resulted in the devices being returned, which caused his inability to
Washington No. 22CA17 75
regain possession of the items. Based on our review of the record, including
the information and status of the case at the time the trial court issued its
final ruling denying Smith’s motion, we cannot say that the trial court
abused its discretion in doing so. Accordingly, the second assignment of
error is without merit. It is hereby overruled.
ASSIGNMENT OF ERROR THREE - PROSECUTORIAL
MISCONDUCT IN CLOSING ARGUMENTS
A. STANDARD OF REVIEW
{¶118} “ ‘The test for prosecutorial misconduct is whether the
conduct complained of deprived the defendant of a fair trial.’ ” State v.
Benge, 2021-Ohio-152, ¶ 54 (4th Dist.), quoting State v. Jackson,
92 Ohio
St.3d 436, 441 (2001), citing State v. Apanovitch,
33 Ohio St.3d 19, 24
(1987); State v. Keenan,
66 Ohio St.3d 402, 405 (1993). Therefore, “[t]he
touchstone of the analysis ‘is the fairness of the trial, not the culpability of
the prosecutor.’ ” State v. Powell,
2020-Ohio-2577, ¶ 149, quoting Smith v.
Phillips,
455 U.S. 209, 219 (1982). Further, the Supreme Court of Ohio has
found that prosecutorial misconduct constitutes reversible error only in “
‘rare instances.’ ”
Keenan at 405, quoting State v. DePew,
38 Ohio St.3d
275, 288 (1998).
{¶119} In this case, Smith’s counsel did not object to the prosecutor’s
remarks during trial. Therefore, we review only for plain error. Pursuant to
Washington No. 22CA17 76
Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Under
the plain-error standard, “the defendant bears the burden of ‘showing that
but for a plain or obvious error, the outcome of the proceeding would have
been otherwise, and reversal must be necessary to correct a manifest
miscarriage of justice.’ ” State v. West, 2022-Ohio-1556, ¶ 22, quoting State
v. Quarterman,
2014-Ohio-4034, ¶ 16.
B. LEGAL ANALYSIS
{¶120} “As a general matter both the prosecution and the defense
have ‘wide latitude during opening and closing arguments.’ ” State v.
Groves, 2022-Ohio-443, ¶ 66 (4th Dist.), quoting State v. Canterbury,
2015-Ohio-1926, ¶ 22 (4th Dist.).(Internal citations omitted.) Herein, Smith
argues that the State improperly expressed its personal opinion as to the
credibility of the witnesses, as well as to the guilt of Mr. Smith. Smith
argues that all the prosecutor’s comments were prejudicial to him and
impacted the jury’s determinations because the case hinged entirely on
credibility. Smith concludes that the allegedly improper remarks
prejudicially affected Smith and infringed upon his substantial constitutional
rights.
{¶121} In the first group of comments, Smith contends that the
Washington No. 22CA17 77
testimony which the prosecutor refers to occurred because Smith was unable
to remember details due to the passage of time. Smith argues that the
prosecutor’s remarks were unsupported by evidence or testimony and were
insinuations and assertions calculated to mislead and to imply that Smith
was lying. The comments are set forth as follows:
And then he started talking about all this extra work,
this work that, you know, all the extra work was
contracted in, and even what’s funny is, when we were
talking to Mr. Monk about whether or not that work he
did, that he did for free, Mr. Schneider then asked Mr.
Smith, well, did you charge the church for that work,
for that overtime, or for that – those hours of labor?
And he couldn’t even answer that question. Why?
Because we all know what the answer is. Yeah, he
charged the church for that labor and then he tried to
say he put it in other parts of the church. But he never
even said what parts of the church he put that labor into,
that labor cost. He couldn’t give you an answer. He
can never give you a straight answer, when he knew he
couldn’t tell you the truth.
{¶122} A prosecutor may not express a personal belief or opinion
as to a witness's credibility. State v. Hayes, 2020-Ohio-5322, ¶ 43 (1st
Dist.), citing State v. Myers,
2018-Ohio-1903, ¶145. However, a prosecutor
may comment on “considerations that the jury could properly consider in
evaluating [a witness's] credibility: his demeanor, consistency, and
opportunity to observe, as well as the extent to which other evidence
corroborated his testimony.” Id. at ¶ 147. Based upon our review of the trial
Washington No. 22CA17 78
transcript, we do not view the prosecutor’s comments as stating a personal
belief as to credibility. Rather, the prosecutor’s comments challenged the
jury to consider the consistency of Smith’s testimony, i.e., the fact that
Smith seemed to remember many aspects of the two projects in great detail,
especially his dealings with Mr. Hale during both projects, but was,
supposedly, unable to recall specifics as to dealings with John Monk. The
prosecutor’s comment about Smith’s inability to give “a straight answer” is
not a personal opinion but a comment upon the believability of Smith’s
testimony. See State v. Johnson,
1999 WL 1071686, *6 (5th Dist.).
Furthermore, even if we somehow viewed this as error, it would not rise to
the level of plain error, given that the discussion regarding Mr. Monk was
related to an extrinsic matter and not the ultimate issue at trial.
{¶123} Smith next argues that the State improperly hypothesizes on
why defense counsel did or did not ask certain questions:
And when Mr. Monk was on the stand, he talked - - and
it was interesting because the Defense never asked him
if they engage in contracts, because they didn’t want to
ask him that, because they knew he doesn’t engage in
contracts written down with Mr. Smith. He said Oh,
no, we just use handshake, you know. It’s a man’s
word. That’s what Mr. Monk said.
{¶124}The prosecutor is permitted to fairly comment upon the
Washington No. 22CA17 79
testimony and evidence, and the inferences to be drawn. See State v.
Ralston, 2017-Ohio-7057 ¶ 40 (4th Dist.); Canterbury, supra, at 31; State v.
Mundt,
2007-Ohio-4836, ¶ 119. Canterbury, supra, at ¶ 25. In this case,
Smith testified that he had a contract with the church, essentially, because he
had a signed writing and acknowledged receipt of payments from the
church. Mr. Smith indicated that was his way of doing business, to always
have a signed contract. Smith also called John Monk as a witness and
discussed their business relationship. It appears that the prosecutor was
simply countering Smith’s argument, throughout trial, that he always used
written contracts. We find these remarks to be fair commentary upon the
evidence.
{¶125}In the final group of remarks, Smith argues the State made
impermissible suggestions based on the prosecutor’s observations, which
were intentionally designed to mislead the jury. The remarks are as follows:
And like I said, I had been observing Mr. Smith. That
moment, right before that, he thought he was hitting all
sorts of points with that witness. He had the biggest
smile on his face, when that guy was testifying. As
soon as Mr. Monk said, no, it’s about handshakes, that
smile left his face faster than his defense left this
courtroom, because he knew it was over. He knew that
everyone else knew that he does contracts orally as well
as written down.
Washington No. 22CA17 80
{¶126} “ ‘A defendant's face and body are physical evidence.’ ” State
v. Williams, 2020-Ohio-1228, ¶ 37 (1st Dist.), quoting State v. Brown,
38
Ohio St.3d 305, 317 (1988). A prosecutor may comment on the defendant's
physical appearance, demeanor and body language during trial. State v.
Green,
90 Ohio St.3d 352, 373 (2000); (citation omitted.) See also State v.
Ladson,
2018-Ohio-1299, ¶ 38 (8th Dist.), (While finding no impropriety in
the prosecutor’s remarks, recognizing that some appellate courts have found
prosecutor’s comments about a defendant’s demeanor to be improper).
{¶127} Any “ ‘[p]rosecutorial misconduct rises to plain error only if it
is clear that a defendant would not have been convicted in the absence of the
improper comments.’ ” Canterbury, supra, at ¶ 19, (internal citations
omitted.) We are also mindful that when reviewing allegations of
prosecutorial misconduct, it is our duty to consider the complained of
conduct in the context of the entire trial. See State v. Waters, 2014-Ohio-
3109, ¶ 33 (4th Dist.); citing Darden v. Wainright, 477 U.S. 168 (1986). See
also State v. Hall,
2014-Ohio-2959, ¶ 47 (4th Dist.). In this case, the idea
that the State’s comments alone led the jury to find Smith guilty is
speculative at best. Therefore, we find no impropriety in the comments. See
State v. Talley,
2016-Ohio-8010, ¶ 40 (6th Dist.).
{¶128} Based upon a review of the record and within the context of
Washington No. 22CA17 81
the entire trial, we cannot conclude that the statements by the prosecution,
when reviewed under a plain error standard, rose to the level of prosecutorial
misconduct. In other words, we cannot say Appellant would not have been
convicted in the absence of the statements. Furthermore, the trial court
instructed the jury that the closing arguments of counsel are not evidence,
and we presume that jurors follow the court's instructions. State v. Noling,
2002-Ohio-7044, see e.g., State v. Williams,
73 Ohio St.3d 153, 159 (1995).
Accordingly, Smith’s third assignment of error is hereby overruled.
ASSIGNMENT OF ERROR FIVE - JUROR MISCONDUCT
ASSIGNMENT OF ERROR SIX - INEFFECTIVE
ASSISTANCE OF COUNSEL
{¶129} Because Smith’s arguments in these assignments of error are
interrelated, we consider them jointly. Under the fifth assignment of error,
Smith contends that the trial court erred by failing to dismiss a juror who
was observed communicating with one of the State’s witnesses. For the
reasons which will follow, we disagree.
A. STANDARD OF REVIEW - JUROR MISCONDUCT
{¶130} “ ‘[W]hen integrity of jury proceedings is in question, a court
“should determine the circumstances, the impact thereof upon the juror, and
whether or not it was prejudicial, in a hearing with all interested parties
permitted to participate.” ’ ” State v. Lee, 2018-Ohio-3957, ¶ 23 (10th Dist.),
Washington No. 22CA17 82
quoting State v. Lang,
2011-Ohio-4215, ¶ 54, quoting Remmer v. United
States,
347 U.S. 227, 230 (1954). An inquiry into alleged juror misconduct
requires a two-step analysis. State v. Marshall,
2007-Ohio-6298, ¶ 57 (4th
Dist.). “First the trial court must determine whether misconduct occurred.
(Internal citation omitted). Then, if juror misconduct is found, the court
must determine whether the misconduct materially affected the appellant's
substantial rights.” State v. Coleman,
2006-Ohio-3200, ¶ 10 (4th Dist.).
When a juror forms an opinion as to guilt or innocence before all the
evidence is presented, such activity constitutes misconduct. See State v.
Combs,
2002-Ohio-1136, *3 (5th Dist.). “Trial courts are given broad
discretion when dealing with allegations of juror misconduct. (Internal
citation omitted). Thus, its decision when faced with such allegations must
be reviewed for an abuse of discretion.” State v. Robinson,
2007-Ohio-3501,
¶ 96 (7th Dist.).
{¶131} In this case, it was brought to the trial court’s attention that
Juror Smith and Mr. Hale held some sort of conversation on a break. The
trial court conducted a hearing in chambers. At the conclusion of the
hearing, Smith did not interpose any objection or move for the juror’s
removal. Once again, where the complaining party fails to object to the trial
court's failure to question a juror or decision to not disqualify a juror for
Washington No. 22CA17 83
misconduct, an appellate court may notice a “plain error” although it was not
brought to the attention of the court. Lee, at ¶ 26; Thompson at ¶ 73; State v.
Keith,
79 Ohio St.3d 514, 528 (1997); State v. Frazier,
2007-Ohio-5048, ¶
107; State v. Clark,
2014-Ohio-5101, ¶ 23 (10th Dist.).
B. LEGAL ANALYSIS
{¶132} During the hearing in chambers, the trial court inquired as
follows:
The Court: So, and, again, this is because the
reason we give you these admonitions
about not talking to people, not
contacting someone, there was a
report that you had a conversation
with Mr. Hale, the witness, while –
Juror Smith: Right. I was just asking him about - -
The Court: In line at the, downstairs. If you
wouldn’t mind just recounting that
conversation, so that everybody know
what - - what was talked about.
Juror Smith: I, I just said, I heard or he said
something about him being, chief of
the fire department, told him I had an
uncle on the fire department, just
mentioned who it was. I said, he’s a
pretty good guy. And that’s all
I said.
The Court: Okay. There were no discussions
about this case?
Juror Smith: No.
Washington No. 22CA17 84
The Court: Okay. Attorney Schneider, do you
have any inquiry for Mr. Smith?
Attorney I do not. Do you?
Schneider:
The Court: Attorney Derkin. Attorney Summers?
Mr. Schneider: Other than, well, I - - either we can
ask or I would assume the Court
would ask, does anything about that
cause him - -
The Court: Oh. Because you had that discussion
with him, does that change your
opinion of the case and have - - and
either bias the case toward the State
and against Mr. Smith or the other
way?
Juror Smith: No.
The Court: Okay. Attorney Summers?
Attorney I was just trying to explain to my
Summers: client the jury situation. So you, as
the Court said, were basically told not
to do what you did.
Juror Smith: Yeah.
Attorney: And he had - - he had told you, gave
Summers: you that admonishment now to not do
it again. But I guess the question that
my client would like to know is, you
know, why would you even strike up
that conversation with him? I mean,
that obviously gives you - - I mean,
Washington No. 22CA17 85
there’s something about what you
asked him, you have some connection
to him, because he was a firefighter
and so our fear is that because of that,
and because you know that your
uncle’s a firefighter and he’s a good
guy, as you testified to today, that
somehow you’re going to take his
testimony and - - favor it over or give
it greater weight than testimony of
anybody else. I mean, you can
obviously do that within the
courtroom setting because of the way
people testify, but if you use this sort
of exterior thing that you bring into the
courtroom, that’s a problem for us. So
why did you even ask that question in
the first place, knowing what - -
Juror Smith: I don’t know. Actually, the guy just
married my aunt. He’s not even
really my uncle, other than by
marriage.
Attorney: Okay. But my question is, why would
Summers: you – I mean, why would you even
start that conversation up with him?
Juror Smith: I don’t know. Just more or less, like,
how you doing? I mean, I didn’t
mean anything by it.
The Court: And again, for the record, they - -
everyone was standing in line waiting
for food at the commissary
downstairs. Correct?
Juror Smith: Right.
Attorney So that you’re - - you’re saying that
Washington No. 22CA17 86
Summers: it’s not going to affect your ability to
render an impartial verdict according -
Juror Smith: No.
Attorney - - to the law and the evidence
Summers: presented in the case?
Juror Smith: Not at all.
Attorney: Okay. Thank you.
Summers:
….
The Court: We appreciate your candor. …
Anybody wish to put anything on the
record.
Attorney The State has nothing.
Schneider:
Attorney
Summers: We don’t have anything, Your Honor.
… We’re not going to make any
motions or anything to take him off.
The Court: All right. Thank you. And- - and the
Court does find that, based on the
statements of both parties, they did
not - - anyway my instruction was,
you are cautioned not to discuss the
case amongst yourselves or anyone
else, not to read - - and again, do not
do any of the prohibited items
contained in my admonition.
Washington No. 22CA17 87
{¶133} It is unclear from the transcript whether the trial court actually
made a determination that misconduct occurred. Ultimately, the trial court
did not remove Juror Smith. Juror misconduct does not necessarily require
reversal in all cases. See Marshall, supra, at ¶ 61.
{¶134} Based on the foregoing, we cannot find that the trial court’s
failure to sua sponte remove Juror Smith constituted error or plain error.
While an explicit finding of misconduct was not made, Juror Smith was
questioned and his response indicated that the conversation with Mr. Hale
did not affect his ability to render an impartial verdict. There is no evidence
to suggest that Juror Smith formed an opinion as to guilt or innocence before
all the evidence was presented, as required for a finding of misconduct.
{¶135} Even if the court had found the communication to be juror
misconduct, again based on Juror Smith’s representation to the court, we
cannot find that the supposed misconduct materially affected Smith’s
substantial rights. Based on the foregoing, Smith’s fifth assignment of error
is without merit and is hereby overruled.
C. STANDARD OF REVIEW - INEFFECTIVE ASSISTANCE
{¶136} To prevail on an ineffective assistance claim,
a defendant must show: “(1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable
Washington No. 22CA17 88
representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel's errors, the proceeding's result would have been different.” State v.
Colonel, 2023-Ohio-3945, ¶ 60 (4th Dist.); State v. Short,
2011-Ohio-3641, ¶
113, citing Strickland v. Washington,
466 U.S. 668, 687-688, 694 (1984).
Failure to satisfy either part of the test is fatal to the claim.
Strickland at 697,
104 S.Ct. 2052. The defendant “has the burden of proof because in Ohio, a
properly licensed attorney is presumed competent.” State v. Gondor, 2006-
Ohio-6679, ¶ 62. We “must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’ ”
Strickland at 689, quoting Michel v. Louisiana,
350 U.S. 91, 101
(1955); State v. Conant,
2020-Ohio-4319, ¶ 28 (4th Dist.).
D. LEGAL ANALYSIS
{¶137} Based on our finding that the trial court did not abuse its
discretion nor commit plain error by failing to dismiss Juror Smith, we
cannot find that Smith’s counsel’s failure to object or otherwise move for
dismissal constitutes deficient performance. Again, based on Juror Smith’s
representation to the court that the conversation did not affect his opinion of
the case or affect his ability to be fair and impartial, even had such an
Washington No. 22CA17 89
objection or motion been made, it is not likely to have been granted. Any
objection or motion would likely have been futile. “The law does not
require counsel to take a futile act.” Conant, supra, at ¶ 30. Smith’s
counsel's performance was not deficient for failing to make objections to or
move to dismiss Juror Smith. Accordingly, this argument is without merit
and we overrule Smith’s sixth assignment of error.
ASSIGNMENT OF ERROR NINE - CUMULATIVE ERROR
A. STANDARD OF REVIEW
{¶138} Under the cumulative error doctrine, “a conviction will be
reversed where the cumulative effect of errors in a trial deprives a defendant
of the constitutional right to a fair trial even though each of numerous
instances of trial court error does not individually constitute cause for
reversal.” State v. Garner, 74 Ohio St.3d 49, 64 (1995), citing State v.
DeMarco,
31 Ohio St.3d 191 (1987), paragraph two of the syllabus; State v.
Ruble,
2017-Ohio-7259, ¶ 75 (4th Dist.). “Before we consider whether
‘cumulative errors’ are present, we must first find that the trial court
committed multiple errors.” State v. Smith,
2016-Ohio-5062, ¶ 106 (4th
Dist.), quoting State v. Harrington,
2006-Ohio-4388, ¶ 57 (4th Dist.).
{¶139} The cumulative error doctrine does not apply where the
defendant “cannot point to ‘multiple instances of harmless error.’ ” State v.
Washington No. 22CA17 90
Mammone, 2014-Ohio-1942, ¶ 148; State v. Fannon,
2018-Ohio-5242, ¶ ¶
124-125 (4th Dist.); State v. Thacker,
2021-Ohio-2726, ¶¶ 69-71 (4th Dist.).
{¶140} Smith argues that cumulative errors violated his constitutional
right to a fair trial. However, because we found no errors, the cumulative
error doctrine does not apply. Mammone, supra, at ¶ 173; State v. Maxwell,
2014-Ohio-1019, ¶ 253; State v. Ludwick,
2022-Ohio-2609, ¶ ¶53-57 (4th
Dist.) (citation omitted.) Accordingly, the ninth assignment of error is also
overruled.
{¶141} Having found no merit to any of Appellant’s assignments of error,
the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Washington No. 22CA17 91
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
Washington No. 22CA17 92
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J., concur in Judgment and Opinion.
For the Court,
_________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
