State v. Roby

[Cite as State v. Roby, 2010-Ohio-1498.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 12-09-09

v.

RICHARD A. ROBY, OPINION

DEFENDANT-APPELLANT.

Appeal from Putnam County Common Pleas Court
Trial Court No. 2009CR23

Judgment Affirmed

Date of Decision: April 5, 2010

APPEARANCES:

Kelly J. Rauch for Appellant

Todd C. Schroeder for Appellee
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WILLAMOWSKI, P.J.,

{¶1} Defendant-Appellant, Richard A. Roby (“Roby”), appeals the

judgment of the Putnam County Court of Common Pleas after a jury trial finding

him guilty of burglary, receiving stolen property, and possession of criminal tools.

On appeal, Roby claims that the prosecutor made improper references to his

assertion of his Fifth Amendment rights; that the state failed to present sufficient

evidence for the jury to find him guilty; and that he was denied his right to

effective assistance of counsel. For the reasons set forth below, the judgment is

affirmed.

{¶2} Roby was arrested after he broke into a parked semi-truck equipped

for overnight accommodation. The State accused Roby of attempting to commit a

theft offense. Roby admitted that he broke into the truck, but claimed that he had

been hitchhiking and that he was just looking for a place to sleep because it was

cold outside.

{¶3} On April 4, 2009, two truck drivers, Jerry Miller (“Jerry”) and

Samuel Schultz (“Sam”) were scheduled to drive their semi-trucks from Kalida,

Ohio, to Alabama. Their trucks were parked side-by-side in the parking lot of

Kalida Equipment Leasing in preparation for the trip. They had agreed to depart

around 9:00 to 9:30 p.m. and drive through the night. Jerry had arrived at his

truck earlier in the evening and was trying to take a nap in the sleeping

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compartment of his truck before the trip. At approximately 9:00 p.m., he looked

out his window when he heard a loud noise and saw Roby breaking into Sam’s

truck. Jerry called 9-1-1 and reported to the dispatcher what he was observing.

Jerry stated that he saw a light moving around from within the cab and that it was

clear someone was moving throughout the cab as the truck itself was shifting back

and forth. Jerry remained on the phone until Deputy Mark Doster from the

Putnam County Sheriff’s office arrived on the scene a few minutes later.

{¶4} When the deputy arrived, Roby jumped out of the truck and started

to run away down towards a creek. Deputy Doster pursued Roby on foot,

informed him that he was from the Sheriff’s Office, and told him that if he did not

stop he was going to use his Taser on him. Roby stopped running and was taken

into custody.

{¶5} Sam arrived at the scene shortly after Roby’s arrest and noticed that

several of his personal items, a TV, DVD’s, a CB box, and other items, had been

removed from the sleeping area of his cab and placed in the front seat of his truck.

Then, the owner of Kalida Equipment Leasing, Urban Selhorst (“Urban”), arrived

on the scene and observed a white van with Indiana license plates on the property

that did not belong there. Further investigation revealed that the van had been

stolen from Indianapolis on March 27, 2009. A search of the van disclosed

personal property that authorities claimed was connected to Roby.

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{¶6} On May 1, 2009, the Putnam County Grand Jury indicted Roby on

the following four charges: Count I – Burglary, in violation of R.C.

2911.12(A)(2), a felony of the second degree; Count II – Receiving Stolen

Property, in violation of R.C. 2913.1(A), a felony of the fourth degree; Count III –

Receiving Stolen Property, in violation of R.C. 2913.1(A), a felony of the fifth

degree; and, Count IV – Possession of Criminal Tools, in violation of R.C.

2923.24(A), a felony of the fifth degree. Count III, the second charge for

receiving stolen property, was dismissed before trial.

{¶7} On September 14, 2009, a jury trial was held. At trial, Jerry testified

to hearing the break-in, calling 9-1-1, and verified what he observed while Roby

was in the trailer and being pursued. Sam testified as to how his belongings had

been removed from his sleeping compartment and placed on the front seat of the

truck. Both testified that it had been their intent to depart between 9:00 and 9:30

p.m. that day. Urban testified that he noticed a white van which did not belong on

his property.

{¶8} Deputy Doster then testified to chasing and apprehending Roby. He

also identified numerous photos of the crime scene that he had taken that evening

and they were admitted as exhibits. Deputy Doster also identified photos he had

taken of the screwdriver and flashlight that he discovered shortly after

apprehending Roby. The deputy believed Roby discarded the flashlight and

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screwdriver in the grass as he was being chased, but admitted that he didn’t see

him throw the items.

{¶9} Lieutenant Marvin Schweibert, also from the Putnam County

Sherriff’s office, testified that he arrived at the scene after Roby was apprehended

and investigated the crime scene and the white van. Lieutenant Schweibert, the

lead investigator for the Detective Division, also testified to finding a cell phone

and copies of money grams in the white van that connected the vehicle to Roby.

{¶10} At the conclusion of the State’s evidence, Roby testified on his own

behalf. Roby admitted to numerous previous convictions for theft, breaking and

entering, and receiving stolen property, but insisted that his only motive in

breaking into this truck was to find a place to sleep for the night. He also

disavowed any connection with the white van and its contents. Roby stated that he

did not have a flashlight or screwdriver, and claimed that he broke the truck

window with his elbow. He also denied moving the TV and other property in the

truck.

{¶11} The jury found Roby guilty beyond a reasonable doubt of all three

pending charges. On September 22, 2009, the trial court held a sentencing

hearing. The trial court reviewed the pre-sentence investigation report and found

that Roby’s extensive criminal conduct had been on-going for forty-four years and

that he had at least eleven different prison commitments. As a result, the trial

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court imposed maximum and consecutive sentences for a total of ten years and six

months in prison (eight years on Count I, eighteen months on Count II, and twelve

months on Count IV). It is from this judgment that Roby appeals, raising the

following five assignments of error.

First Assignment of Error

The trial court committed error by allowing the prosecutor to
make statements and introduce evidence regarding [Roby’s]
assertion of his Fifth Amendment Rights.

Second Assignment of Error

The State failed to present sufficient evidence for the jury to find
that [Roby] was guilty of burglary in violation of Ohio Revised
Code Section 2911.12(A)(2) beyond a reasonable doubt.

Third Assignment of Error

The State failed to present sufficient evidence for the jury to find
that [Roby] was guilty of possession of criminal tools in violation
of Ohio Revised Code Section 2923.24(A) beyond a reasonable
doubt.

Fourth Assignment of Error

The State failed to present sufficient evidence for the jury to find
that [Roby] was guilty of receiving stolen property in violation of
Ohio Revised Code Section 2913.51(A) beyond a reasonable
doubt.

Fifth Assignment of Error

[Roby] was denied the right to effective assistance of counsel and
he was prejudiced as a result.

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First Assignment of Error

{¶12} In his first assignment of error, Roby asserts that the prosecutor

violated his Fifth Amendment rights by improperly eliciting testimony regarding

Roby’s silence after his arrest. Although these statements were not objected to in

the trial court, Roby contends that these errors amount to plain error and the trial

court’s failure to uphold his constitutional right to remain silent constitutes

reversible error. The State asserts that no such error exists because the testimony

elicited regarding Roby’s post arrest silence was made in fair response to defense

counsel’s questions as to whether law enforcement had questioned Roby about the

charged offenses.

{¶13} Although a court will not generally consider alleged errors that were

not brought to the attention of the trial court, Crim.R. 52(b) provides that the court

may consider such errors affecting substantial rights. An alleged error constitutes

plain error only if the error is obvious and, but for the error, the outcome of the

trial clearly would have been different. State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, 767 N.E.2d 216, ¶108.

{¶14} Evidence submitted by the State regarding a defendant’s exercise of

his right to remain silent during an interrogation violates the Due Process Clause

of both the state and federal constitutions. Doyle v. Ohio (1976), 426 U.S. 610,

618, 96 S.Ct. 2240, 49 L.Ed.2d 91; State v. Leach, 102 Ohio St.3d 135, 807

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N.E.2d 335, 2004-Ohio-2147, ¶18. "A defendant's decision to exercise his right to

remain silent during police interrogation is generally inadmissible at trial either for

purposes of impeachment or as substantive evidence of guilt." State v. Perez, 3d

Dist. No. 4-03-49, 2004-Ohio-4007, ¶10, citing Leach, 2004-Ohio-2147. Use of a

defendant’s silence in the state’s case-in-chief puts a defendant in the position of

having to choose between allowing a jury to infer guilt from his silence or being

forced to take the stand to explain his prior silence, thereby surrendering his right

not to testify. Perez, 2004-Ohio-4007, at ¶20. Nevertheless, the introduction of

evidence regarding a defendant’s decision to remain silent does not constitute

reversible error if, based on the whole record, the evidence was harmless beyond

any reasonable doubt. State v. Zimmerman (1985), 18 Ohio St.3d 43, 45, 479

N.E.2d 862. The Ohio Supreme Court has held that “[a] single comment by a

police officer as to a suspect’s silence without any suggestion that the jury infer

guilt from the silence constitutes harmless error.” State v. Treesh, 90 Ohio St.3d

460, 2001-Ohio-4, 739 N.E.2d 749; State v. Welch, 3d Dist. No. 16-06-02, 2006-

Ohio-6684, ¶10.

{¶15} Roby complains about the following line of questions posed by the

State in its direct examination of Lieutenant Schweibert:

Q: And upon initiation of that interview, did you advise the
defendant of his rights?

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Lieutenant: Right. *** I advised him of his Miranda rights and
made sure he understood it before anything was asked of him.

Q: And was it your intention to ask him about the crime and
the van and get his responses to those sort of questions?

Lieutenant: Correct.

Q: And did you have an opportunity to ask those questions?

Lieutenant: Right after I advised him of his Miranda warning,
he advised me that he would like to exercise his right to remain
silent and seek counsel.

Q: And so did you then have an opportunity to ask him about
the van?

Lieutenant: Once he advised or indicated he wanted counsel,
remain silent, the interview stopped.

Trial Tr., p. 120, lines 3-25.

{¶16} If we look at the entire trial transcript as a whole, we find that this

line of questioning was not impermissible because the defense had first opened the

door to the topic of Roby’s post-arrest silence. The United States Supreme Court

has held that the Fifth Amendment does not prohibit references to a defendant's

invocation of the right against self-incrimination when the references are made in

“fair response” to the defense's claims. United States v. Robinson (1988), 485

U.S. 25, 32-34, 108 S.Ct. 864, 99 L.Ed.2d 23; State v. Ferguson, 10th Dist. No.

07AP-999, 2008-Ohio-6677, ¶51.

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{¶17} Prior to the State’s questioning of Lieutenant Schweibert above,

defense had asked Deputy Doster if Roby had been questioned about the tools and

the break-in. As a result of that exchange, the defense left the jury with the

impression that the law enforcement officers’ investigation and interrogation were

inadequate in that Roby was not questioned about the charged offenses. That is

because defense counsel had first asked Detective Doster the following questions:

Q: Okay. But then you said also too that you took pictures of
the items from the van because you believe those were the tools
used to break into the semi?

Detective: Into some semis or break into things, yes.

Q: Okay, but they weren’t the tools that were used in this
particular break-in?

Detective: No.

Q: Did you question my client as far as this situation?

Detective: As far as the breaking into the semi?

Q: Yes.

Detective: No, I did not.

Q. Did you ask my client how he had gotten there that night?

Detective: No, I did not.

Q. Okay, so you don’t know how he got there?

Detective: No, I do not.

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Q. So any connection that he may have to this white van is, you
don’t know?

Trial Tr. p.111, lines 4-25.

{¶18} We do not find that the State’s testimony in response to the defense

counsel’s questions violated Roby’s Fifth Amendment rights. Lieutenant

Schweibert’s testimony made minimal mention of Roby’s silence, and only to

clarify Detective Doster’s previous response to defense counsel’s question that

implied that the officers had failed to question Roby and thoroughly investigate

the matter. This is in contrast to cases where a Doyle violation was found when

the state attempted to use the defendant’s exercise of Fifth Amendment rights to

impute the inference of guilt. See, e.g., State v. Leach (the prosecutor mentioned

the defendant's pre-arrest silence in the opening statement, the prosecution elicited

testimony on the defendant's pre-arrest silence through its own initiative, and the

prosecution used the testimony as evidence of the defendant’s guilt).

{¶19} The facts in this case are similar to those in State v. Reed, where the

officer testified that the defendant refused to answer questions after being read his

rights, but only after defense counsel invited the testimony based on the cross-

examination of the police officer. State v. Reed, 10th Dist. No. 08AP-20, 2008-

Ohio-6082, ¶21. See, also, State v. Thompson, 10th Dist. No. 08AP-956, 2009-

Ohio-3552, ¶¶21-24 (finding that a prosecutor may question a defendant about

post-arrest silence without a Doyle violation if the defendant has raised the issue

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on direct examination); State v. Lamb, Butler App. No. CA 2002-07-171, 2003-

Ohio-3870 (no Doyle violation of prosecutor's cross-examination of the defendant

regarding the defendant’s post-arrest, post-Miranda silence where the issue was

first raised by the defendant); State v. Eason, (no violation of Fifth Amendment

rights where the prosecutor commented on the defendant's post-arrest silence when

the defendant testified about his silence as part of his defense); State v. Vance,

Ashland App. No.2007-COA-035, 2008-Ohio-4763 (the prosecutor did not

initially question the deputy about the defendant's post-arrest silence; the inquiry

was made only after the defense raised the subject.)

{¶20} Furthermore, the State requested a bench conference prior to

questioning the lieutenant and put all parties on notice of the State’s intent to elicit

testimony that law enforcement did attempt to ask Roby such questions, but that

they were not able to follow through because Roby exercised his right to remain

silent. The record supported the fact that this testimony was elicited only to give

the jury a more accurate perception of the interrogation of Roby. The transcript

verified that the State did not overemphasize Roby’s assertion of his Fifth

Amendment rights; it did not imply that his silence equated to guilt; and, it did not

reference Roby’s silence at any point thereafter.

{¶21} We find that the references to Roby’s assertion of his right to remain

silent were permissible as a “fair response” to defense counsel’s raising the issue

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and were not a violation of Roby’s constitution rights. Furthermore, even if it

would have been error, Roby failed to show he suffered any prejudice that would

have constituted plain error. Roby alluded that he “had no choice but to testify to

explain his silence,” and that because he took the stand, information concerning

prior convictions came before the jury. Contrary to this assertion, in the opening

statement defense counsel had already represented that Roby was going to testify.

Therefore, his decision to take the stand had been made earlier and was not done

to explain why he exercised his right to remain silent. The first assignment of

error is overruled.

Second Assignment of Error

{¶22} In his second, third, and fourth assignments of error, Roby contends

that the State failed to present sufficient evidence for each of the charges such that

a rational jury could have found all elements of each crime had been proven

beyond a reasonable doubt. When reviewing the sufficiency of the evidence, our

inquiry focuses primarily upon the adequacy of the evidence; that is, whether the

evidence submitted at trial, if believed, could reasonably support a finding of guilt

beyond a reasonable doubt. See State v. Thompkins (1997), 78 Ohio St.3d 380,

386, 1997-Ohio- 52, 678 N.E.2d 541, 546 (stating, “sufficiency is the test of

adequacy”); State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503.

The standard of review is whether, after viewing the evidence in the light most

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favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jenks, supra. This

test raises a question of law and does not allow the court to weigh the evidence.

State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

{¶23} In the second assignment of error, Roby asserts that the State failed

to prove any of the elements of R.C. 2911.12(A)(2), burglary, which states that

“no person by force, stealth or deception shall trespass in an occupied structure or

in a separately secured or separately occupied portion of an occupied structure,

that is a permanent or temporary habitation of any person when any person other

than an accomplice of the offender is present or likely to be present, with purpose

to commit in the habitation any criminal offense.” The State was required to

prove the following: 1) that the offender trespassed into an occupied structure that

was the permanent or temporary habitation of another person; 2) that another

person was present or likely to be present; and 3) the purpose for trespassing was

to commit a criminal offense.

{¶24} First, Roby contends that the State failed to present evidence that he,

or an objective person looking at the semi-truck, would know that it was equipped

with a bed and that it would qualify as an “occupied structure.” Second, he claims

that the state failed to prove that another person was “likely” to be present. And

finally, he argues that the State failed to present sufficient evidence to prove that

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Roby intended to commit a theft in the vehicle. Our review of the record finds

that there was sufficient evidence to support Roby’s conviction for burglary as a

matter of law.

{¶25} The testimony at trial clearly established that the semi-truck was an

“occupied structure” according to the definition in R.C. 2909.01(C):

(C) “Occupied structure” means any house, building,
outbuilding, watercraft, aircraft, railroad car, truck, trailer,
tent, or other structure, vehicle, or shelter, or any portion
thereof, to which any of the following applies:

(1) It is maintained as a permanent or temporary dwelling,
even though it is temporarily unoccupied and whether or not
any person is actually present.

(2) At the time, it is occupied as the permanent or temporary
habitation of any person, whether or not any person is actually
present.

(3) At the time, it is specially adapted for the overnight
accommodation of any person, whether or not any person is
actually present.

(4) At the time, any person is present or likely to be present in
it.

When determining whether a structure is an “occupied structure,” the question is if

the dwelling has a residential purpose, not whether the occupant is actually

present. State v. Hunt, 3d Dist. No. 3-09-06, 2009-Ohio-5435, ¶6. The definition

does not specify that the structure must appear to be an occupied structure.

Therefore, contrary to Roby’s assertion, the State was not required to present any

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evidence that either Roby or an “objective person” would know that it was

equipped with a bed.

{¶26} The testimony at trial clearly established that the vehicle in question

was a truck that was maintained as a temporary dwelling when Sam was on the

road, whether or not Sam or any other person was actually present at the time. In

addition, the testimony of Jerry and Sam verified that the truck was specially

adapted for the overnight accommodation of a person, specifically that the truck

contained a compartment behind the seats equipped with a bed, TV, microwave,

dresser drawers, and other amenities. See State v. Jett, 12th Dist. No. 393, 1982

WL 3126 (finding that truck equipped with a mattress behind the seats for sleeping

was an occupied structure according to the statutory definition.) Roby himself

testified that he intended to sleep in the truck.

{¶27} Testimony further established the fact that Sam was “likely” to be

present at the time. Ohio courts have stated that while the term “likely” connotes

something more than a mere possibility, it also connotes something less than a

probability or reasonable certainty. State v. Green (1984), 18 Ohio App.3d 69, 72,

480 N.E.2d 1128. A person is likely to be present when a consideration of all the

circumstances would seem to justify a logical expectation that a person could be

present. Id.; State v. Dewitt, 3d Dist. No. 1-09-25, 2009-Ohio-5903, ¶9. The issue

is not whether the burglar subjectively believed that persons were likely to be

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there, but whether it was objectively likely. State v. McCoy, 10th Dist. No. 07AP-

769, 2008-Ohio-3293, ¶21. Therefore, the issue is not whether Roby concluded

that a person was not present or not likely to be present, but whether the

circumstances at the time of the offense justified a logical expectation that a

person could be present.

{¶28} The testimony of Jerry and Sam not only established that Sam could

have been present at the time of the offense, but also established that he was

planning to be present at that time. Jerry testified that he and Sam were scheduled

to make a delivery in Alabama and had agreed to leave around 9:00 to 9:30 p.m.

Sam’s testimony was consistent with Jerry’s testimony, affirming that it was his

plan and intention to arrive at his truck at 9:00 p.m., even though he didn’t actually

arrive until about 9:15 p.m. Jerry and Sam further testified that it was common to

arrive at the truck prior to the departure time to either take a nap before driving all

night, or to prepare the truck for the journey. In fact, Jerry was in his truck parked

right next to Sam’s truck, even though the lights were off and it did not appear to

be occupied. Roby could just as easily have broken into Jerry’s truck which

actually would have been occupied at the time.

{¶29} And finally, although Roby testified that his intention for breaking

into the truck was to find a place to sleep, there was considerable evidence that

would allow a jury to find that he intended to commit a theft. The deputy testified,

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and provided a photograph, showing that there were many items sitting on the

passenger seat of the vehicle, such as a briefcase and television. Sam testified that

his television had been removed from its place in the sleeping compartment and

that the casings holding the television in its place had been pried off. Sam further

testified that DVDs and other personal property had been in the drawers and

cupboards of his sleeping compartment, but they had all been moved to the front

seat and floor area. There was considerable evidence from which a juror could

conclude that Roby was gathering the valuables together prior to removing them

from the truck.

{¶30} We find that as a matter of law there was sufficient evidence that the

truck met the definition of an “occupied structure;” that an objective person could

find that Sam was likely to be there; and, that Roby intended to commit a theft

offense. Finding sufficient evidence of all of the elements of R.C. 2911.12(A)(2)

for a jury to find Roby guilty beyond a reasonable doubt of burglary, we overrule

Roby’s second assignment of error.

Third Assignment of Error

{¶31} In his third assignment of error, Roby asserts that the State failed to

present sufficient evidence that he was guilty of possession of criminal tools

pursuant to R.C. 2923.24. Roby claims that he was wearing gloves because it was

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cold, not to hide fingerprints or protect his hands. He further denies that the

flashlight and screwdriver which were found at the scene belonged to him:

{¶32} R.C. 2923.24 states:

[n]o person shall have or possess under the person’s control any
substance, device, instrument, or article, with the purpose to use
it criminally. ***

Whoever violates this section is guilty of possessing criminal
tools. **** If the circumstances indicate that the substance,
device, instrument, or article involved in the offense was
intended for use in the commission of a felony, possessing
criminal tools is a felony of the fifth degree.

{¶33} Again, we find that viewing the evidence in the light most favorable

to the prosecution, it was entirely possible that a trier of fact could have found all

the essential elements of the offense proven beyond a reasonable doubt. Jerry

testified that it appeared that Roby was using a flashlight within the truck when he

observed him moving around in the vehicle. Sam stated that the trim around the

TV cabinet had been removed, or “busted off.” Roby admitted that he was

wearing gloves at the time of the offense. In addition to that testimony, a

flashlight and screwdriver were found at the scene. While Deputy Doster

acknowledged that he did not actually see Roby with those items, it was his belief

that Roby had discarded those items based on the location where they were found.

And finally, Lieutenant Schweibert testified to finding tools in the white van that

were commonly used to remove CB radios, antennas, and other electronics.

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{¶34} Based on the above testimony and photographic evidence presented

at trial, we find that there was sufficient evidence of all of the elements of R.C.

2923.24 for a jury to find Roby guilty beyond a reasonable doubt of possession of

criminal tools. Roby’s third assignment of error is overruled.

Fourth Assignment of Error

{¶35} Roby also argues that there was insufficient evidence to convict him

of receiving stolen property, in violation of R.C. 2913.51. This charge was related

to the white van that was found in the Kalida Equipment Leasing parking lot, and

the items that were inside of that van. Roby states that the State failed to prove

that Roby had possession and control of the van and that there was insufficient

evidence linking him to that van.

{¶36} Pursuant to R.C. 2913.51, “(A) No person shall receive, retain or

dispose of property of another knowing or having reasonable cause to believe that

the property has been obtained through the commission of a theft offense. *** (C)

Whoever violates this section is guilty of receiving stolen property. *** If the

property involved is a motor vehicle, *** receiving stolen property is a felony of

the fourth degree.”

{¶37} In his testimony, Roby disclaimed any knowledge of, or connection

with, the white van with the Indiana license plates that was found in the parking

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lot at the same time Roby was breaking into Sam’s truck. He continued to insist

that he arrived at the parking lot after hitchhiking.

{¶38} Records from the Indianapolis police department confirmed that the

van had been reported stolen at the end of March, just a few days before this

incident. Lieutenant Schweibert testified that the steering column was broken on

the van, a further indication of a stolen vehicle. Lieutenant Schweibert also

testified to finding a crumbled up $150 money gram receipt in the white van and

that the names of Roby’s son (Ryan Roby) and his former son-in-law (Steve Balo)

were on the document. The lieutenant also found a pre-paid cellphone in the van

showing several calls had been placed to Roby’s daughter, Crystal. Lieutenant

Schweibert had also contacted Steve Balo about the money gram and Mr. Balo

confirmed that Roby had called him from that telephone number concerning the

money gram.

{¶39} The jury apparently chose not to believe Roby’s denial of any

connection to the stolen white van. We find that there was sufficient evidence

available to enable a reasonable jury to conclude that Roby had possession and

control of the stolen vehicle. Roby’s fourth assignment of error is overruled.

Fifth Assignment of Error

{¶40} In his final assignment of error, Roby asserts that he did not receive

a fair trial based on the ineffectiveness of his trial counsel. He claims that his trial

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counsel was ineffective in several aspects of the trial, including: 1) failure to

object and/or move for a mistrial when the issue of his asserting his Fifth

Amendment right to remain silent was raised; 2) failure to object to the admission

of prior acts of theft; 3) allowing the admission of evidence of convictions that

were older than ten years; and, 4) failure to object to the admission of hearsay

statements by the State’s witnesses concerning the money gram evidence that

linked Roby to the white van. Roby argues that, in light of all of the above errors,

his counsel’s representation was so deficient that she was not functioning as

counsel as guaranteed by the Sixth Amendment and there exists a strong

probability that, but for counsel’s errors, the result of the proceeding would have

been different.

{¶41} The Supreme Court of Ohio has established a two-part test to

determine if trial counsel was ineffective. First, the defendant must show that

counsel's performance fell below objective standards of reasonable representation,

and second, the defendant must show resulting prejudice. State v. Dickinson, 3d

Dist. No. 11-08-08, 2009-Ohio-2099, ¶20, citing State v. Bradley (1989), 42 Ohio

St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. To show prejudice, the

defendant must prove that there existed a reasonable probability that, but for

counsel's errors, the outcome at trial would have been different. Bradley, at

paragraph three of the syllabus.

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{¶42} A defendant must also overcome the presumption that counsel is

competent and must show that counsel's decisions were “not trial strategies

prompted by reasonable professional judgment.” Dickinson at ¶21, citing

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Even unsuccessful tactical or strategic decisions will not constitute ineffective

assistance of counsel. State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d

965. An appellate court must review the totality of the circumstances and not

isolated instances of an allegedly deficient performance. State v. Stacy, 3d Dist.

No. 13-08-44, 2009-Ohio-3816, ¶20.

{¶43} On June 10, 2009, Roby requested that his previous court-appointed

attorney be withdrawn and he specifically requested that the trial court appoint

attorney Athena Nyers, who was representing him in a similar criminal case in

Allen County at the time. The trial court granted Roby’s request and Ms. Nyers

was appointed to represent Roby. Roby further requested that Ms. Nyers represent

him in this appeal, but she declined because she did not practice appellate law.

Roby is now claiming that his attorney was ineffective in representing his interests

at trial.

{¶44} First, Roby claims his counsel failed to object and/or move for a

mistrial when the issue of his asserting his Fifth Amendment right to remain silent

was raised. This court has previously held that trial counsel's failure to object does

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not establish ineffective assistance of counsel. State v. Turks, 3d Dist. No. 1-08-44,

2009-Ohio-1837, ¶43, citing State v. Conway (2006), 109 Ohio St.3d 412, 2006-

Ohio-2815, 848 N.E.2d 810, ¶103. “Furthermore, trial counsel's failure to object

is generally viewed as trial strategy and does not establish ineffective assistance.”

Id., citing State v. McKinney, 11th Dist. No.2007-T-0004, 2008-Ohio-3256, ¶191.

As noted above in the first assignment of error, we did not find any error or

violation of his Fifth Amendment rights in the “fair response” line of questioning.

A bench conference was held prior to the State’s line of questioning, so his

attorney was informed of the basis for eliciting this testimony. There was nothing

to object to and no grounds for a mistrial.

{¶45} Next, Roby complains that counsel failed to object to the admission

of prior acts of theft when Lieutenant Schweibert was describing the tools found in

the white van and explained how “channel locks” could be used for criminal

activity. He stated that “[t]hrough my investigation, Mr. Roby had been stealing

CBs, CB antennas, things like that; and channel locks are used to quickly unscrew

antennas, nuts, bolts, ***.” We find that this testimony would likely have been

admissible under Evid.R. 404(B) to help establish plan and knowledge.

Furthermore, Roby himself admitted to numerous convictions for other theft

offenses when he testified, so Roby cannot demonstrate how this brief mention of

information that Roby also provided to the jury was in any way prejudicial.

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{¶46} Roby also states that his trial counsel was ineffective for failure to

object to evidence of convictions that were older than ten years, specifically a

1995 theft conviction and a 1997 burglary conviction. Evid.R. 609(A)(2) states

that, in most cases, evidence of a conviction that occurred more than ten years

prior is not admissible unless the court determines that the probative value of the

conviction substantially outweighs its prejudicial effect.

{¶47} The references to the two older crimes occurred when Roby was

testifying and the State questioned Roby about his prior convictions. This line of

questioning was for the purpose of impeaching Roby in response to his denial of

any intention to commit a theft inside the semi-truck. Although those two

convictions were more than ten years old, the probative value of the State’s efforts

to impeach Roby’s stated intention for being in the van could have outweighed

any prejudicial effect. In addition, any prejudicial effect would have been

extremely minimal given the fact that Roby also acknowledged convictions for

receiving stolen property (2000), another receiving stolen property (2000),

receiving stolen property (2003), theft (2004), theft (2005), possession of criminal

tools (2006), another possession of criminal tools (2006), and breaking and

entering (2006).

{¶48} Finally, Roby claims his counsel was ineffective for failing to object

to the admission of hearsay statements by Lieutenant Schweibert concerning

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statements Steve Balo told him about the money gram. First, as stated above,

failure to make objections does not constitute ineffective assistance of counsel per

se, as that failure may be justified as a tactical decision. See State v. Gumm, 73

Ohio St.3d 413, 428, 1995-Ohio-24, 653 N.E.2d 253. And, even without the brief

testimony concerning the conversation with Mr. Balo, contrary to Roby’s

assertion, there was additional evidence that connected Roby to the van, such as

his daughter’s phone numbers in the cell phone and the names of his relatives on

the money gram.

{¶49} We do not find that the actions of counsel complained about by

Roby fell below objective standards of reasonable representation. Furthermore,

given the totality of the evidence, there was not a reasonable probability that the

result of the trial would have been different. Roby’s fifth assignment of error is

overruled.

{¶50} 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 and PRESTON, J.J., concur.

/jlr

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