State v. Bright

[Cite as State v. Bright, 2014-Ohio-982.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-13-30

v.

DARRYL G. BRIGHT II, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court
Trial Court No. 13 CR 0022

Judgment Affirmed

Date of Decision: March 17, 2014

APPEARANCES:

Kent D. Nord for Appellant

Brian O. Boos for Appellee
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PRESTON, J.

{¶1} Defendant-appellant, Darryl G. Bright, II, appeals the Seneca County

Court of Common Pleas’ judgment entry of conviction and sentence. We affirm.

{¶2} On February 6, 2013, the Seneca County Grand Jury indicted Bright

on seven counts, including: Counts One, Two, Three, and Five of breaking and

entering, violations of R.C. 2911.13(A), (C) and fifth-degree felonies; Count Four

of receiving stolen property in violation of R.C. 2913.51(A), (C), a fifth-degree

felony; Count Six of theft in violation of R.C. 2913.02(A)(1), (B)(6), a third-

degree felony; and, Count Seven of illegal processing of drug documents in

violation of R.C. 2925.23(C)(2), (F), a fifth-degree felony. (Doc. No. 2).

{¶3} On February 28, 2013, Bright entered pleas of not guilty at

arraignment. (Doc. No. 16).

{¶4} On April 9, 2013, Bright filed a motion for separate trials. (Doc. No.

24). On April 12, 2013, the State filed a memorandum in opposition. (Doc. No.

25). On April 15, 2013, Bright filed a response. (Doc. No. 26).

{¶5} On May 6, 2013, the trial court held a hearing on the motion for

separate trials, and, thereafter, denied the motion. (Doc. No. 28).

{¶6} On June 4, 2013, Bright filed a motion in limine to exclude his prior

criminal history from trial. (Doc. No. 37).

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{¶7} On June 17-18, 2013, a jury trial was held. The trial court granted

Bright’s motion in limine, with the exception that the parties stipulated to the fact

that Bright had a previous felony drug conviction. (Doc. No. 44); (Stipulation No.

1); (June 17-18, 2013 Tr. Vol. I at 125-126). The jury found Bright guilty on all

counts. (Doc. Nos. 45-51); (June 18, 2013 JE, Doc. No. 52). Thereafter, the trial

court sentenced Bright to 11 months imprisonment each on Counts One, Two,

Three, and Five; 10 months imprisonment each on Counts Four and Seven; and,

30 months imprisonment on Count Six. (June 18, 2013 Sentencing Tr. at 29);

(June 24, 2013 JE, Doc. No. 53). The trial court further ordered that Bright serve

the terms imposed for Counts One, Two, Three, Five, and Six consecutively to

each other; and, the terms imposed for Counts Four and Seven concurrently to all

the other terms, for an aggregate sentence of 74 months. (Id.); (Id.).

{¶8} The trial court filed its judgment entry of sentence on June 24, 2013,

and Bright filed his notice of appeal on July 23, 2013. (Doc. Nos. 53, 60). Bright

raises three assignments of error on appeal.

Assignment of Error No. I

The conviction in the trial court should be reversed because the
evidence was insufficient and because the decision was against
the manifest weight of the evidence and because the evidence
supporting it was insufficient as a matter of law to prove the
conviction beyond a reasonable doubt.

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{¶9} In his first assignment of error, Bright argues that his breaking and

entering convictions were not supported by sufficient evidence and were against

the manifest weight of the evidence. In particular, Bright argues that the State

failed to produce any evidence that he was at the crime scenes. Bright argues that

had law enforcement conducted a thorough investigation, they would have

concluded that the evidence failed to indicate each of the breaking and entering

incidents were committed by the same person.

{¶10} When reviewing the sufficiency of the evidence, “[t]he relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259

(1981), paragraph two of the syllabus.

{¶11} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses and

determine[ ] whether in resolving conflicts in the evidence, the [trier of fact]

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983). A reviewing court must, however, allow the trier of fact

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appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

{¶12} The criminal offense of breaking and entering is codified in R.C.

2911.13, which provides, in pertinent part: “No person by force, stealth, or

deception, shall trespass in an unoccupied structure, with purpose to commit

therein any theft offense, as defined in section 2913.01 of the Revised Code, or

any felony.” R.C. 2911.13(A).

{¶13} Eleven witnesses testified for the State. Lieutenant Jason Windsor of

the Tiffin Police Department testified that, between December 2012 and January

2013, Picture Perfect Studio, Ed Lape Insurance, Welty Insurance, and Dr.

Salem’s Office—businesses located on the west side of town along West Market

Street—were all victims of break-ins. (June 17-18, 2013 Tr. Vol. I at 101-102).

Windsor testified that law enforcement successfully traced a Marathon gas card

stolen from Welty Insurance to Al’s Convenience Store where they obtained video

surveillance footage of the individual who used the debit card. (Id. at 103-104).

Windsor testified that the gas card was used the same morning Welty Insurance

reported the break-in. (Id. at 105). Windsor identified Bright as the individual in

the video surveillance footage using the stolen gas card. (Id. at 106). Windsor

identified State’s exhibit one as a CD containing three surveillance videos

depicting Bright’s vehicle, a blue Dodge Durango, in the parking lot, and Bright

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entering Al’s Convenience Store, which videos were played for the jury. (Id. at

107-108). Windsor identified State’s exhibit two as a still image of Bright

entering Al’s Convenience Store. (Id. at 109). Windsor testified that, after

identifying Bright from the surveillance video, law enforcement confirmed his

address and observed the blue Dodge Durango in the driveway. (Id. at 110-111).

{¶14} Windsor testified that, based upon the aforementioned information,

law enforcement searched Bright’s residence on January 22, 2013. (Id.). Windsor

testified that law enforcement found in Bright’s bedroom a Bose radio that was

taken from Ed Lape’s State Farm Insurance office. (Id. at 112). Windsor testified

that he called Ed’s wife during the search, and she provided him with the matching

serial number to the Bose radio recovered from Bright’s bedroom. (Id. at 117-

118). Bright claimed that he received the radio from Tim DeRose, but DeRose

denied giving Bright the radio, according to Windsor. (Id. at 118). Windsor

identified State’s exhibit 15 as a photograph of Bright’s bedroom depicting the

stolen radio. (Id. at 119).

{¶15} Windsor further testified that he located a family photograph

belonging to Rob Ledwedge, the owner of Picture Perfect, in some garbage on the

back porch of Bright’s residence. (Id. at 112). Windsor testified that they

discovered numerous CD’s and a brown box containing Herkimer diamonds,

which were items that Ledwedge listed as stolen from his business. (Id. at 113).

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Windsor identified several photographs of stolen items located at Bright’s

residence, including: the Ledwedge family photograph (State’s Ex. 3); CDs

belonging to Picture Perfect (State’s Exs. 4-5); a cash box and cash box tray

(State’s Exs. 6-7); and, a brown jewelry box containing crystals (State’s Ex. 8).

{¶16} Windsor also testified that law enforcement located within Bright’s

residence: a Honeywell programmable thermostat, three brand new, never opened

leather chairs, 20-24 vials of Lidocaine, a prescription drug pad, and a rubber

signature stamp, and hypodermic needles—all items stolen from Dr. Salem’s

office. (June 17-18, 2013 Tr. Vol. I at 114-115). Windsor identified photographs

of these items, found at Bright’s residence. (Id. at 115-117); (State’s Exs. 9-14).

{¶17} Windsor testified that law enforcement also recovered two pairs of

shoes from Bright’s residence for comparison with shoeprints found at the scene

of the Welty Insurance break-in. (June 17-18, 2013 Tr. Vol. I at 119). Windsor

identified State’s exhibit 17 as one of the two pairs of shoes taken from Bright’s

residence; State’s exhibit 16 as a photograph of the shoeprint in the snow near

Welty Insurance; and, State’s exhibit 18 as a box of shoeprint castings collected

for lab tests. (Id. at 120).

{¶18} Windsor testified that Bright’s girlfriend indicated that Bright had

been staying between the residence they just searched and his grandmother’s

residence. (Id. at 121-122). Windsor testified that, based upon this information,

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law enforcement searched the grandmother’s home, but did not locate any stolen

property within her home. (Id.).

{¶19} Windsor testified that law enforcement located blood at the scene of

the Welty Insurance break-in, which they used to identify Nathanial A. Schroth as

a suspect. (Id. at 122-123).1 According to Windsor, Schroth was cooperative with

the investigation and returned a camera (photographed in State’s exhibit 19) that

Schroth claimed he had taken from the business. (Id. at 123-124). Windsor

testified that he discovered pictures of Scott Welty still on the camera. (Id. at 124-

125).

{¶20} Windsor further testified that Bright had a prior felony drug

conviction. (Id. at 125). At that point, the parties read to the jury Stipulation

Number 1 concerning Bright’s prior felony drug conviction. (Id. at 126).

Concerning the similarities between the four break-ins, Windsor testified that all

the businesses were within a short distance of each other and from Bright’s

residence; that law enforcement found pry marks of similar sizes at several of the

break-ins; that law enforcement found property from each of the break-ins in

Bright’s possession; and, that the shoeprint located in the snow near Welty

Insurance matched the shoe size and tread pattern of Bright’s shoes. (Id. at 126-

127).

1
The parties stipulated that the blood recovered from the Welty Insurance break-in was that of Nathaniel A.
Schroth. (Stipulation No. 2); (June 17-18, 2013 Tr. Vol. I at 123).

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{¶21} On cross-examination, Windsor testified that law enforcement did

not perform testing on the doors of the businesses that were broken into, because

law enforcement never recovered any pry tools for comparison. (Id. at 131, 140).

He testified that initially, Schroth lied to him and denied his involvement in the

break-ins until Windsor confronted Schroth with the DNA evidence from the

blood recovered at the scene. (Id. at 134). Windsor testified that Schroth had not

been charged with anything but would be charged with breaking and entering. (Id.

at 135). No plea agreement had been worked out for Schroth, according to

Windsor. (Id.). Windsor testified that the report from the Bureau of Criminal

Identification and Investigation (“BCI”) indicated that the shoeprints at the scene

of the crime were “the same size, tread pattern” as Bright’s shoes, but did not

definitively conclude the print was made from Bright’s shoes. (Id. at 136-137).

{¶22} Windsor testified that pry tools are used more often in break-ins than

merely kicking doors in. (Id. at 139). Windsor testified that he did not believe

that the door at Picture Perfect had pry marks, though he could not recall because

he did not process that scene. (Id. at 140). Windsor testified that, during the surge

of break-ins during December 2012 to January 2013, three to four other businesses

were broken into and seven to eight garages. (Id. at 141). Windsor testified that

one of these other break-ins was the West Market Street Salon, which is less than

two blocks from Bright’s residence, and some of the garages were three or four

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blocks away from Bright’s residence. (Id. at 142). Windsor testified that law

enforcement never found any fingerprints or DNA at the crime scenes that

matched Bright. (Id. at 143). He also testified that law enforcement did not have

any videos or pictures of Bright at any of the crime scenes. (Id.). Windsor further

testified that he found an empty prescription bottle for Tim DeRose in the trash on

Bright’s back porch. (Id. at 143-144).

{¶23} On re-direct, Windsor testified that, over his seventeen years in law

enforcement, he has never had a case where the pry tool was discovered, because

criminals know law enforcement can compare the damage to the tools. (Id. at

144).

{¶24} Donna Bouillon, an employee of Ed Lape State Farm Insurance,

testified that, when she entered the office on December 21, 2012, she noticed the

office was a little messy, so she called Ed Lape, who indicated that he had not

been in the office. (Id. at 153). Bouillon testified that she then looked at the cash

drawer and realized they had been robbed. (Id. at 155). Bouillon testified that

three cameras, a Bose radio, the cash drawer, and a can of change were missing

from the office. (Id. at 155). Bouillon testified that the back door was broken and

there was a shoe print on the door. (Id. at 156). Bouillon identified the garbage

can appearing in a photograph of Bright’s residence as the same one owned by her

office. (Id. at 156-157); (State’s Ex. 8). She also testified that approximately

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$200 in cash was stolen from the cash drawer. (June 17-18, 2013 Tr. Vol. I at

157). Bouillon testified that the radio photographed in State’s exhibit fifteen

appeared to be the one from their office. (Id. at 158). She testified that the radio

has since been returned to the office. (Id.).

{¶25} Tiffin Police Sergeant Robert Bour testified that he investigated the

break-in at Ed Lape State Farm and initially spoke with Donna at the scene. (Id. at

159-161). Bour testified that he observed damage to the entryway door of the

office and observed some rooms in the office where things were “rifled through

and things laying around.” (Id. at 162). Bour testified that he was not successful

in his attempts to secure latent fingerprints at the scene, but he did collect some

plastic candy wrappers for potential DNA evidence. (Id.). Bour testified that the

BCI analyst failed to produce anything of value to this case. (Id. at 163). Bour

identified State’s exhibits 21 through 35 as photographs he took of the crime

scene, including: the rear of the business (State’s Exs. 21-22); the damaged

doorway of the business (State’s Exs. 23-25); the inside door leading to the

business (State’s Exs. 26-27); rooms within the business, some with items

scattered around (State’s Exs. 28-33); the front entryway (State’s Ex. 34); and just

inside the front door of the business (State’s Ex. 35). (June 17-28, 2013 Tr. Vol. I

at 165-166). Bour further testified that he helped with the investigation at Welty

Insurance, and law enforcement located blood on a digital camera box, as well as

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footprints at the rear of the business. (Id. at 166-167). Bour testified that he

photographed and collected the blood and created an impression of the shoeprint

for analysis at BCI. (Id. at 167).

{¶26} Robert Ledwedge, the owner of Picture Perfect Photo and Frame,

testified that, on the morning of December 2, 2012, he entered his business and

discovered a camera bag and laptop were missing. (Id. at 171-173). Ledwedge

testified that he then noticed the cash register had been broken into, so he called

the police. (Id. at 173). Upon further inspection, Ledwedge discovered that a

cordless drill, a brown box containing Herkimer diamonds, and a couple stacks of

CDs were also missing. (Id. at 174). Ledwedge testified that his family portrait,

photographed in State’s exhibit three, was in the camera bag that was stolen, and

these items have been subsequently returned to him. (Id. at 175). Ledwedge

testified that the cash box and cash drawer photographed in State’s exhibits six

and seven were items stolen from his business and subsequently returned by law

enforcement. (Id. at 175-176). Ledwedge testified that the little wooden box

photographed in State’s exhibit eight belonged to him, and he had Herkimer

diamonds—which are quartz crystals from Herkimer, New York that resemble

actual diamonds—inside of the box. (Id. at 176-177). Ledwedge testified that the

CDs photographed in State’s exhibits four and five also belonged to the business.

(Id. at 177).

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{¶27} Tiffin Police Officer Rachel Nye testified that she was dispatched to

Picture Perfect regarding a break-in. (Id. at 178-180). Nye testified that she

identified pry marks and damage to the north entry door of an adjoining building

owned by Molyet’s Popcorn Production Facility. (Id. at 181-182). She

determined that the suspects exited the building through the south entrance of

Picture Perfect. (Id. at 181-182). Nye testified that she photographed a partial

shoeprint that was found on the tile floor near the cash register. (Id. at 182). Nye

identified State’s exhibits 36 through 47 as photographs of the business, including:

the front of the building (State’s Ex. 36); the damaged north side entrance door

(State’s Exs. 37-39); the main room of the business (State’s Ex. 40); the closet

from which the cash box was stolen (State’s Exs. 41-42); the cash register with all

the cash gone (State’s Ex. 43); the partial shoeprint (State’s Ex. 44); the owner’s

office with an opened cardboard box (State’s Ex. 45); the studio (State’s Ex. 46);

and, the south entrance where the suspects exited the building (State’s Ex. 47).

Nye testified that the shoeprints were not visible to the naked eye; rather, law

enforcement used dust to capture the prints. (June 17-18, 2013 Tr. Vol. I at 187).

{¶28} On cross-examination, Nye testified that Molyet employees did not

think the damage to their entry door was new damage, but the manager later

indicated otherwise. (Id. at 188-189). On re-direct, Nye testified that the pry

marks were behind the door plate, so they were not readily obvious when she first

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approached the door. (Id. at 190-191). On re-cross, Nye testified that she asked

the Molyet employee if she saw any new damage to the door, but Nye did not

point out the damage when she asked the employee this question. (Id. at 192).

{¶29} Scott Welty, the owner of Welty Financial Services, testified that

Bright is not one of his customers. (Id. at 194-196). Welty testified that on the

morning of January 8, 2013, a neighbor called and informed him that the glass to

the business door was broken, so he called an employee who lived in Tiffin to go

to the business and wait for the police. (Id.). Welty testified that the business was

ransacked and there was damage to the back and front doors. (Id. at 197). He

discovered that $150 in cash, one diamond earring, two cameras, a Marathon gas

card, some scratch-off lottery tickets, and gifts of wine and champagne were

missing. (Id. at 197-198). Welty identified State’s exhibit 19 as the camera that

was stolen from his business. (Id. at 198). Welty testified that he used the

Marathon gas cards and lottery tickets as rewards for individuals who refer

business to his agency. (Id.). Welty testified that the gas cards are each issued a

unique number and operate like a credit card. (Id.). Welty testified that he keeps

the receipts for each of the gas cards in his office, and he provided law

enforcement the receipt for the gas card that was stolen. (Id. at 199).

{¶30} Lieutenant Mark Marquis testified that he investigated the break-in at

Welty Insurance and immediately noticed that the glass portion of the front door to

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the business was shattered. (Id. at 201-203). Marquis testified that he also noticed

that the door had pry marks on the wood framing along the right side of the door.

(Id. at 203). Marquis testified that the business was ransacked, and he noticed

further damage to the back door, including pry marks. (Id. at 204). Marquis

testified that they discovered footprints in the snow leading up to and away from

the business, and later discovered blood on a camera box inside the business.

(Id.). Marquis identified State’s exhibits 48 through 59 as photographs of the

crime scene at Welty Insurance, including: the front door (State’s Ex. 48); the

inside of the business towards the back door (State’s Ex. 49); the back door with

the weather stripping removed and broken door handle (State’s Ex. 50); the right-

hand edge of the rear door and a pipe Welty Insurance used to reinforce the back

door (State’s Ex. 51); a close-up of the weather stripping that had been removed

from the exterior side of the rear door (State’s Ex. 52); a cinder block that was

used to hit the back door (State’s Ex. 53); two different shoeprints found in the

snow (State Exs. 54-55); the blood located on parts of the camera box (State’s Exs.

56-58); and, a picture of a ransacked desk (State’s Ex. 59).

{¶31} Marquis testified that Marathon credit services informed him that the

stolen gas card was used at 9:52 a.m. the morning of the break-in at Al’s

Convenience Store on West Market Street. (June 17-18at 208-209). He testified

that he provided this information to Detective Windsor to review surveillance

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footage from the store around that same time. (Id. at 209). Marquis testified that

between December 2012 and January 2013 there was a substantial increase in the

number of businesses that were victims of break-ins. (Id. at 209-211, 216, 219).

Marquis testified that, after Bright’s home was searched, however, the number of

break-ins into businesses sharply decreased. (Id. at 211, 219).

{¶32} Daniel Davison, a BCI forensic scientist, testified that she compared

the photographed shoeprint impressions with shoes that were submitted by law

enforcement for this case. (June 17-18, 2013 Tr. Vol. II at 233-238 ). Davison

testified that one of the shoeprints had the same tread size and shape as the left

shoe that was submitted as Item Number 1; and one of the shoeprints had the same

tread size and tread shape as both of the shoes submitted as Item Number 1. (Id. at

238-239). Davison identified State’s exhibit 60 as a copy of her report containing

these findings. (Id. at 242-243). On cross-examination, Davison testified that she

could not say that the shoeprint was exclusively made by the particular shoe

provided by Bright. (Id. at 243).

{¶33} Dr. Salem testified that, on the morning of January 17, 2013, he went

to his office and noticed that his desk was messed up, books and papers were on

the floor, and drawers were open. (Id. at 258-259). Dr. Salem testified that he

then went in a couple examination rooms where he found the medicine cabinet

open with syringes on the floor, at which point he realized that someone broke into

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his business, so he called the police. (Id. at 259-260). Dr. Salem testified that he

was missing prescription pads, a rubber stamp with his name on it, a box of

Lidocaine, a brand new thermostat, and three brand new office chairs still in the

boxes. (Id. at 261). Dr. Salem identified State’s exhibit 9, taken from Bright’s

residence, as the Lidocaine vials, the prescription pad and rubber stamp with his

name on it—all items he reported stolen. (Id. at 262-263). Dr. Salem also

identified the stolen syringes (State’s Ex. 10); the stolen chairs (State’s Ex. 11);

and, the stolen thermostat (State’s Ex. 12). (June 17-18, 2013 Tr. Vol. II at 266-

267).

{¶34} Nathaniel Schroth testified that this past winter, Bright asked him to

do something illegal, and the two of them went to Welty Insurance, where they

tried to gain entrance through the back door, but it was barricaded with a steel

pipe. (Id. at 268, 271-272). Schroth testified that, after they broke out the glass

from the front door with a pry bar, he crawled into the business and opened the

door for Bright. (Id. at 272). Schroth testified that they took a couple cameras,

around $100 in cash, and a few bottles of alcohol. (Id. at 273). According to

Schroth, they returned to Bright’s residence where he took half the cash, a camera,

and the alcohol. (Id.). Schroth testified that he remembered cutting himself. (Id.).

He also remembered talking to Lieutenant Windsor about the incident and

returning some of the property. (Id.).

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{¶35} On cross-examination, Schroth testified that DeRose introduced him

to Bright, and Schroth gave law enforcement the shoes he thought he was wearing

during the break-in. (Id. at 274). Schroth testified that Windsor looked around his

place when he came to pick up the camera and his shoes, but Windsor did not have

a search warrant. (Id. at 275). Schroth testified that he discussed testifying

against Bright with law enforcement but denied ever asking for favors. (Id. at

276). He admitted that he originally denied his involvement in the Welty

Insurance break-in to Windsor. (Id.). Schroth testified that they used his pry bar,

but he left the pry bar at Bright’s house after they finished. (Id. at 277). Schroth

denied that DeRose was involved in the Welty Insurance break-in or any other

break-ins. (Id. at 278).

{¶36} On re-direct, Schroth denied that law enforcement or the prosecution

ever promised him anything in return for his testimony. (Id. at 279). Schroth

testified that, weeks prior to the Welty Insurance break-in, he let Bright borrow his

pry bar, so the pry bar was at Bright’s residence before they used it to break into

Welty Insurance. (Id. at 279-280). Schroth testified that he left the pry bar at

Bright’s house when they finished the Welty Insurance break-in. (Id. at 280).

{¶37} Tiffin Police Officer Michael Moore testified that, on January 17,

2013, he was dispatched to Dr. Salem’s office regarding a break-in. (Id. at 281-

282). Moore testified that the suspect used a pry tool to gain entrance through the

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back door, which was located in an alley. (Id. at 282-283). Moore identified

State’s exhibits 61 through 78 as photographs of the scene, including: the front

entrance of the office (State’s Ex. 61); the back alley to the doctor’s office (State’s

Ex. 62); the damaged back door to the office (State’s Exs. 63-65); the empty

portion of the doctor’s office where the subject entered and proceeded to Dr.

Salem’s actual office (State’s Ex. 66); Dr. Salem’s name plate on the office door

(State’s Ex. 68); pry marks on the inside main entrance to his office (State’s Exs.

69-70); a view of West Market Street from inside the front entrance of Dr. Salem’s

office (State’s Ex. 71); open drawers behind the front desk of the office (State’s

Ex. 72); open shelves and disheveled papers in the hallway behind the front desk

(State’s Ex. 73); a view of the inside of Dr. Salem’s office, papers on the ground,

and messy desk (State’s Ex. 74); an electric thermometer and box where missing

Lidocaine should be on Dr. Salem’s office desk (State’s Ex. 75); another hallway

with things scattered on the floor (State’s Ex. 76); inside one of the rooms in the

office with an open shelf where the syringes are stored (State’s Ex. 77); and, the

syringes and items laying on the floor of the examination room (State’s Ex. 78).

(June 17-18, 2013 Tr. Vol. II at 284-286).

{¶38} Thereafter, the State moved for the admission of its exhibits and then

rested. (Id. at 295). Bright made a Crim.R. 29(A) motion for acquittal, which was

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denied. (Id. at 296-297). The jury found Bright guilty on all charges. (June 18,

2013 Sentencing Tr. at 2-4).

{¶39} After reviewing the aforementioned testimony, along with the

admitted exhibits, we conclude that Bright’s conviction was supported by

sufficient evidence. The evidence placing Bright at the scene of the several break-

ins was multifaceted. The fact that Bright had a family photograph of Robert

Ledwedge supports the finding that Bright broke into the businesses, ransacking

and taking everything he could carry of apparent value to separate out the

valuables later. Law enforcement recovered multiple items from each of the

break-ins in Bright’s home during a lawful search. Footprints in the snow outside

of the Welty Insurance building were consistent with the tread size and pattern of

Bright’s shoes. Bright used a Marathon gift card that was stolen from Welty

Insurance within hours after the business had been broken into. Schroth

implicated Bright in the Welty Insurance break-in, and Schroth testified that he

allowed Bright to borrow a pry bar several weeks prior to that break-in and

afterwards, as well. The suspect’s modus operandi for the several break-ins was

consistent—bust into the rear entrance door of an empty business building using a

pry bar. Law enforcement testified that after Bright was in custody, the surge of

break-ins declined dramatically. We are also not persuaded that Bright’s

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conviction was against the manifest weight of the evidence, because of the

overwhelming and multifaceted nature of the evidence against him.

{¶40} Bright’s first assignment of error is, therefore, overruled.

Assignment of Error No. II

The trial court erred when it overruled Defendant/Appellant’s
motion for separate trials.

{¶41} In his second assignment of error, Bright argues that the trial court

erred by denying his motion for separate trials because the evidence from each

location or victim would not have been admissible in trials for the other locations

or victims, and the evidence of each crime was not simple and distinct.

{¶42} Crim.R. 8(A) permits the joinder of multiple charges against a

defendant if the charges “are of the same or similar character, or are based on the

same act or transaction, or are based on two or more acts or transactions connected

together or constituting parts of a common scheme or plan, or are part of a course

of criminal conduct.” Moreover, “[i]t is well settled that the law favors joinder.”

State v. Waddy, 63 Ohio St.3d 424, 429 (1992), superseded by constitutional

amendment as stated in State v. Smith, 80 Ohio St.3d 89 (1997). See also State v.

Howard, 3d Dist. Marion No. 9-10-50, 2011-Ohio-3524, ¶ 80.

{¶43} When a defendant claims that he was prejudiced by the joinder of

multiple offenses, a court must determine: (1) whether evidence of the other

crimes would be admissible even if the counts were severed; and (2) if not,

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whether the evidence of each crime is simple and distinct. State v. Schaim, 65

Ohio St.3d 51, 59 (1992), citing State v. Hamblin, 37 Ohio St.3d 153, 158-159

(1988). Moreover, “[i]f the evidence of other crimes would be admissible at

separate trials, any ‘prejudice that might result from the jury’s hearing the

evidence of the other crime in a joint trial would be no different from that possible

in separate trials,’ and a court need not inquire further.” Id. at 59, quoting Drew v.

United States, 331 F.2d 85, 90 (C.A.D.C.1964).

{¶44} Whether to grant a motion for severance of counts is left to the

discretion of the trial court and such a decision will not be disturbed absent a

showing of an abuse of discretion. State v. Barstow, 4th Dist. Hocking No.

02CA27, 2003-Ohio-7336, ¶ 53. An abuse of discretion connotes more than just

an error in judgment; rather, it implies an arbitrary, unreasonable, unconscionable

attitude on the part of the trial court. State v. Adams, 62 Ohio St.2d 151, 152

(1980).

{¶45} The several breaking and entering charges were of the same or

similar character in this case. During the search of Bright’s property, items from

all four break-ins was recovered. All of the locations were in close proximity to

each other and Bright’s house; all of the break-ins occurred within the same two-

month period; and, all of the break-ins were accomplished using a pry tool to gain

entrance to the rear door of the businesses, with the exception of Welty Insurance

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where Bright and Schroth attempted but failed to pry open the back door due to a

pipe securing the back door. Given the similarities between each of the break-ins,

the evidence of the other break-ins would have been admissible in the separate

trials under Evid.R. 404(B). See, e.g., State v. Brewer, 3d Dist. Wyandot No. 16-

11-13, 2012-Ohio-3899, ¶ 33 (trial court did not abuse its discretion by allowing

testimony concerning defendant-appellant’s prior breaking and entering conviction

under Evid.R. 404(B) since it was offered to show a “unique, identifiable plan of

criminal activity” to establish defendant-appellant’s identity). See also State v.

Elersic, 11th Dist. Lake Nos. 2000-L-062 and 2000-L-164, 2001 WL 1497192, *

10 (Nov. 21, 2001) (defendant-appellant’s use of pry tools, cutting phone lines,

and stealing a safe in the prior breaking and entering was sufficiently similar for

admission under Evid.R. 404(B) in the subsequent case). In light of these facts,

the trial court did not abuse its discretion by denying the motion to sever.

{¶46} Bright’s second assignment of error is, therefore, overruled.

Assignment of Error No. III

The trial court erred when it overruled Appellant’s objection
and permitted Lieutenant Mark Marquis to testify about
criminal activity that occurred in the City of Tiffin after the
Tiffin Police Department executed a search warrant at the home
of Defendant/Appellant on January 22, 2013.

{¶47} In his third assignment of error, Bright argues that the trial court

abused its discretion by allowing Lieutenant Mark Marquis to testify concerning

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the drop in breaking and entering incidents in Tiffin. Bright argues that this

evidence was irrelevant and inadmissible under Evid.R. 404(B).

{¶48} “‘Relevant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Evid.R.

401. “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” Evid.R.

404(B).

{¶49} A trial court’s decision to allow testimony will not be reversed absent

an abuse of discretion and material prejudice to the defendant. State v. Long, 53

Ohio St.3d 91, 98 (1978).

{¶50} Here, the trial court permitted Marquis to testify that the police

department noted a substantial increase in breaking and entering offenses during

December 2012 and January 2013. Thereafter, Marquis testified, over defendant-

appellant’s objection, that after Bright’s residence was searched on January 22,

2013, there was a significant decrease in the number of these types of break-ins.

Contrary to Bright’s argument, this evidence is relevant to show identity, i.e. that

Bright committed the several, indicted breaking and entering offenses.

{¶51} Bright also argues that this testimony violated Evid.R. 404(B);

however, this rule has no bearing on the testimony at issue. Even if the rule was

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applicable, Marquis’ testimony would have been admissible to show identity, as

we already noted. Consequently, the trial court did not abuse its discretion by

allowing the aforementioned testimony. Furthermore, even if we were to find the

admission of this testimony erroneous, the testimony, alone, was not outcome-

determinative here, so Bright failed to demonstrate prejudice sufficient to warrant

a reversal in this case.

{¶52} Bright’s third assignment of error is, therefore, overruled.

{¶53} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, J., concurs, in Judgment Only.

ROGERS, J. Concurs in Part and Dissents in Part.

{¶54} I concur with the opinion of the majority as to the affirmance on

Counts One, Six, and Seven. However, I respectfully dissent as to the convictions

for Breaking and Entering on Counts Two, Three, and Five.

{¶55} Sufficiency of the evidence is strictly a legal issue to be determined

by the court. It does not involve a weighing of the evidence or the credibility of

witnesses. It is a determination that the trial court should make, with or without a

motion.

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It is the duty of a trial court to submit an essential issue to the jury
when there is sufficient evidence relating to that issue to permit
reasonable minds to reach different conclusions on that issue, or,
conversely, to withhold an essential issue from the jury when there is
not sufficient evidence relating to that issue to permit reasonable
minds to reach different conclusions on that issue.

O’Day v. Webb, 29 Ohio St.2d 215 (1972), paragraph four of the syllabus.2

{¶56} “Whether a sufficiency of the evidence argument is reviewed under a

prejudicial error standard or under a plain error standard is academic.” Perrysburg

v. Miller, 153 Ohio App.3d 665, 2003–Ohio–4221, ¶ 57 (6th Dist.), quoting State

v. Brown, 2d Dist. Montgomery No. 17891 (July 14, 2000). Regardless of the

standard used, “a conviction based on legally insufficient evidence constitutes a

denial of due process.” State v. Thompkins, 78 Ohio St.3d 380, 386–87 (1997).

{¶57} Because I find no evidence in the record that places Appellant at the

scene of the break-ins at Picture Perfect Studio, Ed Lape Insurance, or Dr. Salem’s

Office, I would sustain the first assignment of error as to those charges.

{¶58} Although Appellant argues against the sufficiency of the evidence on

all four breaking and entering charges, the testimony of another individual that he

participated with Bright in the break-in at Welty Insurance supplies sufficient

evidence to allow that charge to go to the jury. The majority has adequately

discussed that offense, including the issue of manifest weight of the evidence on

that charge. Further, Appellant’s arguments fail to specifically address the
2
Although O’Day v. Webb was a civil case, the rationale is equally true, even more important, in criminal
cases.

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convictions for the offenses of receiving stolen property, theft, or illegal

processing of drug documents (Counts Four, Six, and Seven); therefore, I will not

discuss those Counts.

{¶59} The majority says that the “evidence placing Bright at the scene of

the several break-ins is multifaceted.” Majority Opin., at ¶ 39. It lists several

facts that apply only to the break-in at Welty Insurance and the recovery of

property stolen from all four break-ins. It then speculates as to why Bright had

some property and suggests the existence of a consistent “modus operandi.”

However, the majority does not, and cannot, specify any evidence that places

Bright at Picture Perfect Studio, Ed Lape Insurance, or Dr. Salem’s Office.

{¶60} The recovery of property from the various break-ins would support

charges of receiving stolen property. However, the majority’s speculation as to

why or how Bright acquired some of the stolen property is just that, speculation,

and is improper when considering sufficiency of the evidence. Such conjecture

constitutes a weighing of the evidence, rather than a determination of the existence

of evidence. However, because the majority has engaged in its speculative

analysis, I will discuss the same.

{¶61} In conducting its “analysis” the majority cites to the recovery of a

Ledwedge family photograph as supporting “the finding that Bright broke into the

businesses, ransacking and taking everything he could carry of apparent value to

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separate out valuables later.” Id. The “ransacking and taking” could just as easily

have been accomplished by someone else, who then delivered the property to

Bright for quick cash, leaving the sorting to Bright.

{¶62} As for the existence of a consistent “modus operandi”, I do not

believe that the mere act of breaking into a building is enough to establish a modus

operandi. A modus operandi is a “behavioral fingerprint which, when compared

to the behavioral fingerprints associated with the crime in question, can be used to

identify the defendant as the perpetrator.” State v. Lowe, 69 Ohio St.3d 527, 531

(1994). Thus, the modus operandi reveals a “distinct, identifiable scheme, plan, or

system” that was used in the commission of the crime. State v. Smith, 49 Ohio

St.3d 137, 141 (1990). The majority states that Bright’s “modus operandi for the

several break-ins was consistent–bust into the rear entrance door of an empty

business building using a pry bar.” Majority Opin., at ¶ 39. However, Lieutenant

Windsor testified that the use of pry tools is the most common way to break into

buildings. How was utilizing a commonly used method to break into an

unoccupied structure distinct or unique to Bright? The mere act of using a pry tool

to gain access to a building is not enough to establish modus operandi. See Lowe,

69 Ohio St.3d at 532 (“The only arguably common feature of the other acts and

the murders is the use of rope—Lowe sometimes tied the girls, and [the victim’s]

feet were tied together with rope. The use of rope itself does not provide a

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distinctive behavioral fingerprint.”); see also State v. Burns, 11th Dist. Lake No.

2000-L-189, 2002-Ohio-3585, ¶ 35 (finding that the breaking of a window by a

large object was not enough to establish modus operandi for the crime of breaking

and entering); State v. Elersic, 11th Dist. Lake Nos. 2000-L-062, 2000-L-164,

2001-Ohio-8787, * 10 (finding that the cutting of wires that may have been

connected to a store alarm was not distinct as to establish the defendant’s modus

operandi).

{¶63} Finally, the majority finds support in the fact that the number of

break-ins apparently lessened after the search of Bright’s residence. I find no such

solace there. If someone else were doing the actual break-ins and simply selling

the property to Bright, the number of break-ins might also be reduced due to the

lack of a “fence”, or quick means of disposal.

{¶64} Because I find no evidence whatsoever of Bright’s entry into Picture

Perfect Studio, Ed Lape Insurance, or Dr. Salem’s Office, I would sustain in part

Appellant’s first assignment of error, and vacate the convictions for those three

offenses, being Counts Two, Three, and Five.

/jlr

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