State v. Southam

[Cite as State v. Southam, 2012-Ohio-5943.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 7-12-04

v.

WILLIAM I. SOUTHAM, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court
Trial Court No. 11 CR 0058

Judgment Affirmed

Date of Decision: December 17, 2012

APPEARANCES:

Nicole M. Winget for Appellant

John H. Hanna for Appellee
Case No. 7-12-04

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, William Southam (“Southam”), appeals the

judgment of the Henry County Court of Common Pleas, after a jury found him

guilty of breaking and entering and possession of criminal tools. On appeal,

Southam contends that the trial court should have granted its motion for a mistrial

because of the alleged improper testimony of evidence of prior bad acts, and he

contends that the trial court abused its discretion when it denied Southam’s request

for a continuance. For the reasons set forth below, the judgment is affirmed.

{¶2} During the early morning hours of July 16, 2011, at approximately

2:30-3:00 a.m., deputies from the Henry County Sherriff’s Department were

patrolling in the vicinity of Liberty Center because of recent break-ins in that area.

Deputy Marc Ruskey observed a man wearing heavy, dark clothing and gloves,

who was moving suspiciously among the units at a self-storage facility. Deputy

Ruskey called in additional deputies for assistance and continued to observe the

suspect, who was later identified as Southam. Deputy Ruskey watched Southam

as he stopped in front of several of the individual storage units. Deputy Ruskey

heard rattling sounds, as if he was trying to gain entry to the units, and he observed

Southam open the door to storage unit number 66 and step inside.

{¶3} Deputy Ruskey announced his presence and began to approach, but

Southam fled on foot and a chase ensued. Less than a minute later, Southam was

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apprehended and handcuffed by Deputy Shawn Wymer, who had responded to the

call. Southam was placed into Deputy Sean Walker’s patrol car and returned to

the location of unit 66. Southam had a flashlight with him and heavy-duty bolt

cutters were found on the ground just outside unit 66 where Southam had been.

Several other padlocks were found broken and on the ground by other units

throughout the storage facility.

{¶4} Southam was advised of his Miranda rights and was questioned about

his activities and asked whether anyone else was involved. Southam stated that he

was alone. When Deputy Ruskey asked him which units he had gone into, he told

the deputy, “Just the one you caught me in.” (Tr. 152; 195) It was later

discovered that nineteen storage lockers were broken into and some of them had

missing items. (Tr. 140)

{¶5} On August 2, 2011, the Henry County Grand Jury returned a seven-

count indictment, charging Southam with one count of possession of criminal

tools, in violation of R.C. 2923.24(A), a felony of the fifth degree, and six counts

of breaking and entering, specifying unit number 66 and five of the other units, in

violation of R.C. 2911.13(A), also felonies of the fifth degree,

{¶6} A two-day jury trial was held on January 3 and 4, 2012. Just prior to

the commencement of the trial, the State announced that it was dismissing five of

the six counts of breaking and entering, and only proceeding to trial with count

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one, the possession of criminal tools, and count two, breaking and entering of unit

66. Southam’s attorney did not object to the dismissal of the five counts, but he

requested a continuance. The attorney claimed he needed additional time to

prepare for trial because the five counts that were dismissed were relevant to the

remaining proceedings and affected the defense that had been prepared. The trial

court denied the motion for a continuance.

{¶7} The three deputies who were involved in the arrest that evening and in

the investigation testified at trial. Kyle Kern, the owner of the storage facility,

also testified. In addition to owning the facility, Kern had been using several of

the units for the storage of his own property, including unit number 66.

{¶8} The jury also heard the testimony of Detective Sergeant Kevin

Shultheis, the evidence officer who testified as to the chain of custody for the

broken padlock, the bolt cutters, and the flashlight that were admitted as exhibits.

Pictures of the storage unit, the broken padlock, and the bolt cutters were also

offered into evidence.

{¶9} The defense did not offer any witnesses, but attempted to discredit the

State’s witnesses on cross-examination with questions suggesting that there may

have been another suspect involved. The defense also elicited testimony from the

deputies indicating that, although some items were reported as missing from other

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storage units, the deputies did not find any missing goods in Southam’s

possession.

{¶10} The jury found Southam guilty of both counts. On February 9, 2012,

the trial court sentenced Southam to twelve months in prison on each of the two

offenses, with the sentences to be served consecutively. Southam was given credit

for the 198 days he had already served.

{¶11} It is from this judgment that Southam now appeals, raising the

following three assignments of error for our review.

First Assignment of Error

The trial court erred to the detriment of [Southam] when it
failed to take any steps to cure a violation of the Ohio Rules of
Evidence.

Second Assignment of Error

The trial court erred when it failed to declare a mistrial when
mention of prior bad acts of [Southam] were made by a witness.

Third Assignment of Error

The trial court abused its discretion when it denied [Southam’s]
request for a continuance.

{¶12} The first two assignments of error are related and involve the same

facts, so we shall address them together. During Deputy Walker’s testimony about

what occurred after Southam was apprehended, Deputy Walker stated that he

learned that Southam “ended up having a couple of warrants.” Southam’s attorney

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immediately objected to this statement and moved for a mistrial. The trial court

sustained the objection, but denied the motion for a mistrial, stating that the jury

instructions should cure the issue. On appeal, Southam claims that (1) the trial

court erred by not giving specific curative instructions to the jury concerning the

mention of Southam’s “prior bad acts,” allegedly in contravention of Evid.R.

404(B); and (2) the trial court should have declared a mistrial because the deputy’s

statement prejudicially affected Southam’s substantial rights.

{¶13} The Ohio Rules of Evidence state, in part, “Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity herewith.” Evid.R. 404(B). A trial court may not

admit evidence that tends to show that the defendant committed a crime entirely

independent of the offense for which he is on trial. State v. Breedlove, 26 Ohio

St.2d 178, 183 (1971).

{¶14} In this case, the trial court did not admit the statement made by the

deputy; it immediately sustained the objection to the questionable testimony. At

issue is the following exchange, which occurred during the direct examination of

Deputy Sean Walker, who was involved in the apprehension of Southam.

Prosecutor: And was there any additional questioning beyond that?

Deputy Walker: Not that I’m aware of.

Prosecutor: After Deputy Ruskey finished questioning the suspect,
what happened next?

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Deputy Walker: I continued pulling him up,1 he ended up having
a couple of warrants when I ran him . . .

Defense Counsel: Objection your honor.

The Court: Sustained.

Defense Counsel: I move for an immediate mistrial.

The Court: Overruled.

(Tr. 152-153)

{¶15} After the foregoing exchange, the trial court removed the jurors from

the courtroom and entertained defense counsel’s motion for mistrial. Following

arguments from the State and defense counsel, the trial court denied the motion for

a mistrial. The trial court reasoned that the statement was made inadvertently,

there was no dwelling on the matter, the objection was sustained, and the curative

instructions which are part of the standard jury instructions to disregard any

statements which the trial court has sustained any objections, should be sufficient

to cure any prejudice that might have arisen. (Tr. 155)

{¶16} After explaining its reasoning and intentions, the trial court

addressed defense counsel and specifically asked him whether he would like an

immediate curative instruction. Defense counsel deferred to the court’s discretion,

and the trial court indicated that the standard instructions provided at the end of

1
This refers to the fact that the deputy was in the process of checking Southam’s identification with
dispatch.

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the trial would be sufficient to resolve any further concerns, since an objection to

the testimony had already been raised and sustained.

{¶17} Now, in his first assignment of error, Southam argues that the trial

court erred by not offering a specific curative instruction to the jury. He contends

that the trial court’s failure to take appropriate steps following the deputy’s

testimony led to the jury being prejudiced against him. We find that this argument

fails for several reasons.

{¶18} First, we question Southam’s assertion that the testimony was in

violation of the rules of evidence. In State v. Fairley, 3d Dist. No. 5-03-41, 2004-

Ohio-2616, this Court reviewed a similar situation in which the existence of active

warrants for the arrest of the defendant was mentioned in front of the jury three

times. Similar to the situation in this case, the deputy testified that: “I returned to

my patrol car, and I checked Mr. Owen’s driving status through our dispatcher as

well as checked for any warrants on [the defendant].” Id. at ¶ 30. When asked if

he found any active warrants for the defendant, the deputy answered that he did

and then he placed the defendant under arrest as a result. Id.

{¶19} This Court held that the deputy’s testimony in Fairley did not violate

the Ohio Rules of Evidence because the testimony “did not detail any specific

prior criminal activity which would be prohibited under Evid.R. 404(B).” Id. at ¶

31. In addition, “the statements were general in nature and neither a particular

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crime nor finding of guilt was mentioned,” and “these statements did not attempt

to show an affinity for crime.” Id.; see, also, State v. Salter, 7th Dist. No. 91 C.A.

90, (Nov. 22, 1994), 1994 WL 672970 (finding that similar references to an active

warrant were not prohibited because of the general nature of the references

without mention of a particular crime or finding of guilty).

{¶20} Likewise, in this case, Deputy Walker’s testimony did not detail any

specific prior criminal activity, it was general in nature, and neither a particular

crime nor a finding of guilt was mentioned. Deputy Walker’s brief and

inadvertent statement in this case was not the type of testimony about “prior bad

acts” that is usually prohibited in Evid.R. 404.

{¶21} In any case, the trial court took appropriate steps in response to the

reference to the outstanding warrants. The court sustained the objection and

instructed the jurors that “statements that may have been made that I had sustained

an objection to must be treated as though you never heard them.” (Tr. 257) A

jury is generally presumed to follow a trial court’s instructions. See, e.g., State v.

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 168. Furthermore, defense counsel

was offered the opportunity to have an immediate curative instruction, but

deferred to the trial court’s discretion and did not request one when he could have.

“A party cannot take advantage of an error he invited or induced.” State v. Seiber,

56 Ohio St.3d 4, 17 (1990).

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{¶22} For all of the reasons stated above, we do not find that the trial court

failed to cure a violation of the Ohio Rules of Evidence. Southam’s first

assignment of error is overruled.

{¶23} In the second assignment of error, Southam contends that the

mention of Southam’s “prior bad acts” prejudicially affected the merits of the

case. He claims that the trial court should have declared a mistrial because of the

“prejudice that was planted in the jury’s mind.”

{¶24} “A mistrial should not be ordered in a criminal case merely because

some error or irregularity has intervened, unless the substantial rights of the

accused are adversely affected and this determination is, again, in the discretion of

the trial court.” State v. Nichols, 85 Ohio App.3d 65 (4th Dist.1993); State v.

Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4. “The granting of a mistrial is

necessary only when a fair trial is no longer possible.” Treesh at 480.

{¶25} In a similar situation, the Ohio Supreme Court affirmed a trial court’s

denial of a mistrial when a police officer made a brief mention of the defendant’s

prior arrests. See State v. Garner, 74 Ohio St.3d 49, 59, 1996-Ohio-168. In

Garner, the Ohio Supreme Court found no prejudice when the trial court

immediately sustained the objection and admonished the jury not to consider the

testimony. Id. Similar to Garner, the deputy’s reference to Southam’s warrants

was “fleeting” and a curative instruction was given to the jury. See id.

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{¶26} As stated in response to the first assignment of error, the deputy’s

inadvertent comment did not constitute impermissible evidence of prior bad acts,

and the trial court acted appropriately to cure any potential affect the statement

might have had upon the trial. Furthermore, given the considerable amount of

uncontroverted evidence against Southam, any error in consideration of the

deputy’s statement would not have had any prejudicial effect and would have

merely been harmless error. See Crim.R. 52(A).

{¶27} The trial court did not abuse its discretion when it denied Southam’s

motion for a mistrial. The second assignment of error is overruled.

{¶28} Lastly, Southam’s third assignment of error alleges that the trial court

abused its discretion when it denied the defense’s request for a continuance when

defense counsel learned that the State was dismissing several of the counts for

breaking and entering. Southam contends that he was denied the opportunity to

adequately prepare a new defense, which was necessitated because his previous

preparation included a large focus on items that were to be discussed in the context

of the dismissed counts. He asserts that there was “no good reason” to deny the

continuance.

{¶29} The grant or denial of a continuance is a matter that is entrusted to

the broad, sound discretion of the trial judge and an appellate court must not

reverse the denial of a continuance unless there has been an abuse of discretion.

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State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 44. An “abuse of

discretion” has been defined as a decision that is unreasonable, arbitrary, or

unconscionable. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

Accommodation of defense counsel’s trial strategy is not an adequate ground for a

continuance. See State v. Unger, 67 Ohio St.2d 65, 68-69 (1981),

{¶30} Just prior to trial, the State conceded concerns as to its ability to meet

the burden of proof for counts three through seven, and therefore, it appropriately

dismissed those counts. While the dismissal of these counts may have been a

surprise to Southam’s defense counsel, surprises occur in trials all the time and

this change did not unfairly prejudice Southam’s right to a fair trial. Each count of

the indictment stood on its own and defense counsel should have been prepared to

defend each of the seven counts. No new witnesses were introduced and no new

evidence was disclosed. The fact that Southam could not utilize any weaknesses

in the dismissed counts was not a ground for a continuance. In reality, counsel did

raise questions concerning the lack of evidence associated with the other storage

units several times during the trial. The evidence that was relevant to the charges

in counts one and two remained the same, before and after the State’s dismissal of

the other counts.

{¶31} Moreover, the trial court had already continued the trial date twice,

both times at Southam’s request. The trial was originally scheduled to begin on

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October 13, 2011. On that morning, while the jury was awaiting voir dire,

Southam informed the trial court that he was dissatisfied with his current attorney

and he wanted to have new counsel appointed. The trial court granted Southam’s

request and rescheduled the trial. Following the appointment of new counsel,

another continuance was requested and the trial date was again rescheduled, to

January 2012. The trial court’s refusal to grant a third continuance was certainly

not unreasonable or arbitrary.

{¶32} While the dismissal of counts three through seven may have had

some impact on defense counsel’s trial strategy, the dismissal did not cause unfair

surprise and did not prejudice Southam’s right to a fair trial. The third assignment

of error is overruled.

{¶33} 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

PRESTON and ROGERS, J.J., concur.

/jlr

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