State v. Hughes

[Cite as State v. Hughes, 2014-Ohio-2328.]

COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case Nos. 12CA0004
JOSEPH Q. HUGHES : 12CA0005
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case Nos. 2008CR128 &
2008CR208

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 27, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TOM C. ELKIN KEVIN P. COLLINS
60 East High Street 495 South State Street
Mount Gilead, OH 43338 Marion, OH 43302
Morrow County, Case Nos. 12CA0004 & 12CA0005 2

Farmer, J.

{¶1} On August 13, 2008, the Morrow County Grand Jury indicted appellant,

Joseph Hughes, on three counts of theft in violation of R.C. 2913.02, five counts of theft

in office in violation of R.C. 2921.41, three counts of tampering with evidence in violation

of R.C. 2911.12, three counts of receiving stolen property in violation of R.C. 2913.51,

one count of falsification in violation of R.C. 2913.51, and one count of engaging in a

pattern of corrupt activity in violation of R.C. 2923.32 (Case No. 2008CR128). On

December 5, 2008, the Morrow County Grand Jury indicted appellant on additional

counts: three counts of theft in violation of R.C. 2913.02, one count of theft in office in

violation of R.C. 2921.41, three counts of tampering with evidence in violation of R.C.

2911.12, and four counts of receiving stolen property in violation of R.C. 2913.51 (Case

No. 2008CR208). Said charges arose from the theft of numerous items including air

conditioners belonging to Morrow County. Appellant was a patrolman with the Mount

Gilead Police Department.

{¶2} On October 15, 2009, appellant filed a motion to suppress, claiming an

unlawful search of his residence wherein the air conditioners and other stolen items

were found. By amended corrected journal entry filed April 7, 2011, the trial court

denied in part and granted in part the motion, finding any seized evidence pertaining to

LED lights was improper.

{¶3} A jury trial commenced on November 14, 2011. In Case No. 2008CR128,

the jury found appellant guilty of one of the theft counts, two of the theft in office counts,

two of the tampering with evidence counts, two of the receiving stolen property counts,

and the falsification count. By journal entry filed January 25, 2012, the trial court
Morrow County, Case Nos. 12CA0004 & 12CA0005 3

sentenced appellant to an aggregate term of two years in prison. In Case No.

2008CR208, the jury found appellant guilty of the theft counts, the theft in office count,

two of the tampering with evidence counts, and three of the receiving stolen property

counts. By journal entry filed January 25, 2012, the trial court sentenced appellant to an

aggregate term of two years in prison. The two aggregate terms were ordered to be

served consecutively.

{¶4} Appellant filed an appeal in each case, citing as error the trial court's

denial of his motion to suppress based on an illegal search and ineffective assistance of

counsel related to the "tainted" evidence discovered during the "illegal search." This

court denied the assignments of error and affirmed appellant's convictions. See, State

v. Hughes, 5th Dist. Morrow No. 12CA0004, 2013-Ohio-458, and State v. Hughes, 5th

Dist. Morrow No. 12CA0005, 2013-Ohio-459.

{¶5} On May 6, 2013, appellant filed a motion to reopen each case, claiming

ineffective assistance of counsel in seven areas. By judgment entry filed August 12,

2013, this court granted the motion on four of the issues: speedy trial, joinder of

indictments, access to grand jury transcripts, and insufficient evidence.

{¶6} This matter is now before this court for consideration. Assignments of

error are as follows:

I

{¶7} "APPELLANT'S RIGHT TO A SPEEDY TRIAL, GUARANTEED BY THE

STATE AND FEDERAL CONSTITUTIONS, WAS VIOLATED BY REPEATED

CONTINUANCES GRANTED TO THE PROSECUTION AND THE DENIAL OF THE

MOTION TO DISMISS."
Morrow County, Case Nos. 12CA0004 & 12CA0005 4

II

{¶8} "THE TRIAL COURT ERRED IN JOINING THE TWO SEPARATE

INDICTMENTS IN THE ABSENCE OF A MOTION THEREFORE, DEPRIVING

APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW."

III

{¶9} "THE TRIAL COURT ERRED AND ABUSED IT'S DISCRETION BY

REFUSING ACCESS TO GRAND JURY TRANSCRIPTS AFTER "PARTICULARIZED

NEED" WAS DEMONSTRATED."

IV

{¶10} "THE EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT, AS A

MATTER OF LAW, TO SUSTAIN THE CONVICTIONS FOR THEFT, THEFT IN

OFFICE, TAMPERING WITH EVIDENCE, AND FALSIFICTION; AND THE

RESULTING CONVICTIONS STAND IN VIOLATION OF THE DUE PROCESS

CLAUSE."

I

{¶11} Appellant claims the trial court erred in denying his motion to dismiss on

speedy trial grounds. We disagree.

{¶12} R.C. 2945.71 governs time within which hearing or trial must be held.

Subsection (C)(2) states a "person against whom a charge of felony is pending: [s]hall

be brought to trial within two hundred seventy days after the person's arrest."

{¶13} A speedy trial claim involves a mixed question of law and fact. State v.

Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. "As an appellate court,

we must accept as true any facts found by the trial court and supported by competent,
Morrow County, Case Nos. 12CA0004 & 12CA0005 5

credible evidence. With regard to the legal issues, however, we apply a de novo

standard of review and thus freely review the trial court's application of the law to the

facts. Id." State v. Colon, 5th Dist. Stark No. 0-CA-232, 2010-Ohio-2326, ¶ 11.

{¶14} R.C. 2945.72 states the following in pertinent part:

The time within which an accused must be brought to trial, or, in the

case of felony, to preliminary hearing and trial, may be extended only by

the following:

(C) Any period of delay necessitated by the accused's lack of

counsel, provided that such delay is not occasioned by any lack of

diligence in providing counsel to an indigent accused upon his request as

required by law;

(E) Any period of delay necessitated by reason of a plea in bar or

abatement, motion, proceeding, or action made or instituted by the

accused;

(H) The period of any continuance granted on the accused's own

motion, and the period of any reasonable continuance granted other than

upon the accused's own motion[.]

{¶15} The first indictment was filed on August 13, 2008 (Case No. 2008CR128).

On November 18, 2008, appellant filed a motion to continue the trial date of December

8, 2008 and waived time for the continuance as he "is the subject of a new indictment
Morrow County, Case Nos. 12CA0004 & 12CA0005 6

which the State and Defendant have agreed will be arraigned on DECEMBER 12, 2008

at 9:00 am." The time from August 13, 2008 to November 18, 2008 was 97 days.

{¶16} The second indictment was filed on December 5, 2008 (Case No.

2008CR208).

{¶17} In both cases, appellant filed a motion to suppress on February 5, 2009

which started tolling time. For the second case, the time from December 5, 2008 to

February 5, 2009 was 66 days. During a September 2, 2009 hearing to entertain

appellant's motion to suppress, defense counsel requested a continuance to obtain

additional discovery: "So based on that, I am requesting a continuance of this hearing to

the new date of 11/30/09 at 1:00 o'clock. Mr. Hughes is here to agree to that

continuance and waive time for that period." September 2, 2009 T. at 4. The trial court

granted the request and noted "[t]ime will continue to toll until our next scheduled - -

until the hearing on the motion to suppress is had." Id. at 6. The final hearing on the

motion to suppress was held on December 15, 2010. The motion to suppress was

denied on March 21, 2011 (an amended corrected journal entry was filed on April 7,

2011). All of the time from February 5, 2009 to March 21, 2011 was tolled.

{¶18} On July 21, 2011, defense counsel (Earl Desmond, Esq.) filed a motion to

withdraw as private counsel which started tolling time. The motion was granted on July

26, 2011. On August 30, 2011, the trial court appointed Mr. Desmond to represent

appellant. The time from March 21, 2011 to July 21, 2011 was 122 days.

{¶19} On September 2, 2011, Mr. Desmond filed a motion to reconsider the

appointment or rescheduled the September 12, 2011 trial date due to his involvement in

a death penalty case which started tolling time. By journal entry filed October 6, 2011,
Morrow County, Case Nos. 12CA0004 & 12CA0005 7

the trial court continued the trial date to November 14, 2011. The time from August 30,

2011 to September 2, 2011 was 3 days.

{¶20} On October 21, 2011, appellant filed a motion to dismiss, alleging speedy

trial violations. On the morning of trial, the matter was argued and the trial court

determined the following (T. at 24-25):

THE COURT: Well, what I'm looking at is that we don't want to get

far afield here. On September the 22nd of 2009, this was a journal entry

filed by Judge Hickson, whereby, it states this matter came on for hearing

on September the 2nd, 2009, indicated the presence of Miss Stefancin

and Mr. Desmond. Counsel for the defendant requested a continuance of

the motion hearing as he is lacking a great deal of discovery and some of

the material that will affect the motion pending before the Court and

therefore, will need to supplement this motion. The Court granted the

defendant's motion to continue. The defendant through counsel waived

his right to a speedy trial in this matter.

And then put down an order for a rescheduling of it until November

the 30th of 2009. The time within which to try this matter is hereby tolled

until the motion to supplement is heard, blah-blah-blah okay. So this

appears to be a waiver in there that apparently counsel was not aware of.

Do you recall that now after that hearing?

MR. DESMOND: I'll admit to bad memory, sir. I don't recall.
Morrow County, Case Nos. 12CA0004 & 12CA0005 8

THE COURT: Well, at any rate, in addition the Court does find that

that entry does exist and denies the defendant's motion, but not just for

that because if I found in there that the State of Ohio was egregious and

just drug this thing out relying on a speedy trial waiver, I would certainly

take that into consideration. The Court does not find that to be the case.

It finds that there was one where the wife was pregnant and in labor.

There was this. It was tolled. There was other motions filed by the

defendant. So the Court finds reasons other than the waiver and also to

deny this motion for dismissal for lack of speedy trial.

{¶21} Notwithstanding appellant's "waiver" on September 2, 2009, a maximum

of 222 days can be charged to the state in the first indictment and a maximum of 191

days can be charged to the state in the second indictment, given that additional days

can be deducted for appellant's requests for discovery and bill of particulars. State v.

Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, syllabus (an accused's "demand for

discovery or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E).")

{¶22} Upon review, we do not find any speedy trial violations, and find the trial

court did not err in denying appellant's motion to dismiss.

{¶23} Assignment of Error I is denied.

II

{¶24} Appellant claims the trial court erred in joining the two separate

indictments for trial in the absence of a motion. We disagree.
Morrow County, Case Nos. 12CA0004 & 12CA0005 9

{¶25} Pursuant to Crim.R. 13, "[t]he court may order two or more indictments or

informations or both to be tried together, if the offenses or the defendants could have

been joined in a single indictment or information."

{¶26} Crim.R. 8(A) governs joinder of offenses and states the following:

Two or more offenses may be charged in the same indictment,

information or complaint in a separate count for each offense if the

offenses charged, whether felonies or misdemeanors or both, 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.

{¶27} Crim.R. 14 governs relief from prejudicial joinder and states the following:

If it appears that a defendant or the state is prejudiced by a joinder

of offenses or of defendants in an indictment, information, or complaint, or

by such joinder for trial together of indictments, informations or complaints,

the court shall order an election or separate trial of counts, grant a

severance of defendants, or provide such other relief as justice requires.

In ruling on a motion by a defendant for severance, the court shall order

the prosecuting attorney to deliver to the court for inspection pursuant to
Morrow County, Case Nos. 12CA0004 & 12CA0005 10

Rule 16(B)(1) any statements or confessions made by the defendants

which the state intends to introduce in evidence at the trial.

{¶28} The standard of review on this issue is set forth in State v. Torres, 66 Ohio

St.2d 340 (1981), syllabus:

A defendant claiming error in the trial court's refusal to allow

separate trials of multiple charges under Crim.R. 14 has the burden of

affirmatively showing that his rights were prejudiced; he must furnish the

trial court with sufficient information so that it can weigh the considerations

favoring joinder against the defendant's right to a fair trial, and he must

demonstrate that the court abused its discretion in refusing to separate the

charges for trial.

{¶29} The state never filed a motion for joinder. On October 21, 2011, appellant

filed a bare motion for relief from prejudicial joinder. On the morning of trial, the matter

was argued to the trial court. The state argued the two indictments covered comparable

criminal acts that were closely related in time, committed as a continuing course of

conduct while appellant was employed as a police officer; therefore, "the evidence of

each indictment individually would be permissible under the Evidence Rules to show

that this was a common plan, motive, scheme, or absence of mistake." T. at 31-32.

Appellant argued the state never filed a motion for joinder and as a result, he was

"massively prejudiced" by having the two cases tried together as it was "never
Morrow County, Case Nos. 12CA0004 & 12CA0005 11

anticipated." T. at 33-34. The trial court denied the motion for relief from prejudicial

joinder, finding the following (T. at 37-39):

THE COURT: Okay. I think I have heard enough to rule so we can

move on. I got into this case approximately a year ago and it has been

evident to me in looking at the file that the parties have always treated

these as being tried together and I'm just going by everybody's surprise

that assuming that because these cases have been set together from day

one, all motions, all hearings, you know, all pleadings are addressing - -

***

What I'm just saying is I think - - I think that you are right. That

there hasn't been and I think that the State has acknowledged that other

than this, they did find this hearing, which kind of goes - - it doesn't say

verbatim, an entry that these cases are hereby joined for the various

reasons, et cetera or any objection, but I think in this case that the defense

has acquiesced in this and has recognized that they are tried together.

There is a continuous course of allegations of a criminal conduct

and in the sense of judicial economy, also or probably in like reasons and I

don't find that the defendant has been prejudiced whatsoever or surprised

because and so just for the record, the Court, you know, hereby

consolidates these and finds that they have been consolidated, you know,

from almost the conception of this case has been treated by both parties

and the Court as the same. No objections have ever been noted by the
Morrow County, Case Nos. 12CA0004 & 12CA0005 12

defense that I can say and I don't think you related that you ever brought

this up until the trial and with all due respect, I don't think that - - I think the

main thing that I want to do, I have gone through and heard the

suppression hearings, so I feel like I'm familiar with that case. I'm not

familiar with all some of the pleadings, et cetera, that went on back. I think

in that case I never heard anything any objection. They were tried

together. I didn't hear, you know, like it doesn't make sense to say for the

motion to suppress it is okay, but for everything else I mean it is not, I

mean for the trial.

{¶30} Every time each case was set for trial, the date would be the same. It

would be impossible for defense counsel to try two separate cases on the same day, so

it was clearly anticipated that the two cases would be tried together. As the state

argued, the two indictments covered comparable criminal acts that were closely related

in time, committed as a continuing course of conduct while appellant was employed as

a police officer; therefore, the evidence of each indictment would come in to show a

common scheme and the absence of mistake.

{¶31} Upon review, we find the trial court did not err in denying appellant's

motion for relief from prejudicial joinder.

{¶32} Assignment of Error II is denied.

III

{¶33} Appellant claims the trial court erred in denying him access to grand jury

testimony as he demonstrated a "particularized need." We disagree.
Morrow County, Case Nos. 12CA0004 & 12CA0005 13

{¶34} Crim.R. 16 governs discovery and inspection. Subsections (B)(1) and (3),

in effect until July 1, 2010 when amended, stated the following:

(B) Disclosure of evidence by the prosecuting attorney

(1) Information subject to disclosure.

(a) Statement of defendant or co-defendant. Upon motion of the

defendant, the court shall order the prosecuting attorney to permit the

defendant to inspect the copy or photograph any of the following which are

available to, or within the possession, custody, or control of the state, the

existence of which is known or by the exercise of due diligence may

become known to the prosecuting attorney:

(i) Relevant written or recorded statements made by the defendant

or co-defendant, or copies thereof;

(ii) Written summaries of any oral statement, or copies thereof,

made by the defendant or co-defendant to a prosecuting attorney or any

law enforcement officer;

(iii) Recorded testimony of the defendant or co-defendant before a

grand jury.

(3) Grand jury transcripts. The discovery or inspection of recorded

proceedings of a grand jury shall be governed by Rule 6(E) and

subsection (B)(1)(a) of this rule.
Morrow County, Case Nos. 12CA0004 & 12CA0005 14

{¶35} Crim.R. 6 governs the grand jury. Subsection (E) states the following in

pertinent part:

(E) Secrecy of proceedings and disclosure

Deliberations of the grand jury and the vote of any grand juror shall

not be disclosed. Disclosure of other matters occurring before the grand

jury may be made to the prosecuting attorney for use in the performance

of his duties. A grand juror, prosecuting attorney, interpreter,

stenographer, operator of a recording device, or typist who transcribes

recorded testimony, may disclose matters occurring before the grand jury,

other than the deliberations of a grand jury or the vote of a grand juror, but

may disclose such matters only when so directed by the court preliminary

to or in connection with a judicial proceeding, or when permitted by the

court at the request of the defendant upon a showing that grounds may

exist for a motion to dismiss the indictment because of matters occurring

before the grand jury.

{¶36} In State v. Greer, 66 Ohio St.2d 139 (1981), paragraph two of the

syllabus, the Supreme Court of Ohio stated: "Grand jury proceedings are secret, and an

accused is not entitled to inspect grand jury transcripts either before or during trial

unless the ends of justice require it and there is a showing by the defense that

a particularized need for disclosure exists which outweighs the need for secrecy."

A particularized need is established " 'when the circumstances reveal a probability that
Morrow County, Case Nos. 12CA0004 & 12CA0005 15

the failure to provide the grand jury testimony will deny the defendant a fair trial' " of the

allegations placed in issue by the witnesses' testimony. State v. Davis, 38 Ohio St.3d

361, 365 (1988), quoting State v. Sellards, 17 Ohio St.3d 169 (1985).

{¶37} Defense counsel argued the particularized need was a result of the state's

motion to amend the indictments because of a scrivener's error. T at 48. Defense

counsel argued the following (T. at 41-42, 44):

MR. DESMOND: I can do it. What happened is that, let's see,

when did they file their motion to amend? Okay. They filed their motions

to amend on November the 4th. At the time that I got these, I managed to

file a memorandum contra, okay, on November 10th, okay, and they want

to amend supposedly according to them, 10 counts in both cases and I

noticed they had them separately and I think it was four in the first in 128

and six in 208. So I go through their motions to amend and I find that they

want to amend and they say nothing more than it is scrivener's error. And

okay, I'm supposed to take their word for this that this is a scrivener's

error.

Well, I can tell you how you can solve this. I asked for then, again,

I had asked for this prior and for a particularized need for grand jury

testimony. And I got some, but not all and I got what I think I was entitled

to at that time. Here now they are saying that these, that these offenses,

that the elements of these offenses were presented to the grand jury and

that they voted on these numbers.
Morrow County, Case Nos. 12CA0004 & 12CA0005 16

***

MR. DESMOND: Yes, sir. I don't - - there is no evidence presented

to you that this grand jury took any evidence on any of that or signed an

incorrect number. You have no evidence of this at all. And in fact, the

State is going to stand up and say, well, he knew what he was defending

here, so he is not prejudiced. The truth is to prejudice, sir, is they have no

evidence that this is what the grand jury indicted on. Thank you, sir.

{¶38} The trial court ruling found no particularized need, finding "based on the

overall presentation to the Court, the Court is convinced that it was a scrivener error and

deny the motion for the grand jury testimony that is asked for by the defendant." T. at

50.

{¶39} Upon review, we concur with the trial court's analysis.

{¶40} Assignment of Error III is denied.

IV

{¶41} Appellant claims insufficient evidence to sustain his convictions for theft,

theft in office, tampering with evidence, and falsification. We disagree.

{¶42} In his brief at 22-24, appellant couched his arguments on specific items

that were stolen, to wit: leg irons/cuffs from the Morrow County Sheriff's Office, a weed

eater, welder, and mower from Candlewood Lake, a hydraulic pump, crimper, and foot

pedal from Custom Power Services, a trailer and air conditioners from Morrow County,

and ATVs from the Morrow County impound lot. Appellant also argued insufficient

evidence as to the valuation of the items.
Morrow County, Case Nos. 12CA0004 & 12CA0005 17

{¶43} The bill of particulars filed on October 24, 2011 states Count 14 in Case

No. 2008CR0128 involved the theft of leg irons/cuffs. In a verdict filed November 23,

2011, the jury found appellant "not guilty" of this count. Appellant was not convicted of

stealing leg irons/cuffs.

{¶44} Appellant was employed as a security officer at Candlewood Lake from

approximately 2007 to 2009, and had access to all of the keys to the gates and

padlocks. T. at 586-587. Greg Perry, a Morrow County Sheriff's Deputy in 2008,

testified a mower stolen from Candlewood Lake was found at the home of appellant's

parents. T. at 203. The license plate from the trailer that the mower was on when it

was stolen was discovered in appellant's pond, 242' from his home. T. at 231-232, 263,

471-472. The weed eater and welder stolen from Candlewood Lake were discovered in

appellant's home with the serial numbers partially scratched off. T. at 164, 202-208.

{¶45} Deputy Perry testified the hydraulic pump with an attached foot pedal from

Custom Power Services was found in appellant's pond. T. at 232, 263, 266. He said

the pump and foot pedal appeared to be the same pump and foot pedal he had

previously seen in appellant's garage. T. at 152, 258-259, 266. Deputy Perry also

photographed the crimper located in appellant's garage. T. at 262. While on duty as a

police officer, appellant checked the doors of Custom Power Services on May 18, and

June 12, 2008. T. at 277-279.

{¶46} Deputy Perry testified the stolen air conditioners and trailer from Morrow

County and the ATVs from the impound lot were discovered in appellant's home. T. at

154-157, 159, 166-171, 188-190, 253-254, 282-284. A license plate on the trailer was

registered to appellant. T. at 148, 470-471. The license plate belonging to Morrow
Morrow County, Case Nos. 12CA0004 & 12CA0005 18

County that had been on the trailer was discovered in appellant's pond. T. at 149, 232.

On the night the air conditioners and trailer went missing, appellant was on foot patrol at

the Community Services Building where the air conditioners had been stored. T. at

190-192.

{¶47} The state presented evidence substantiating the value of the stolen items.

T. at 172, 459-461, 483, 551-553, 594-595, 710-711.

{¶48} Appellant testified and denied stealing any of the items. T. at 812, 816-

817, 819-821.

{¶49} We note circumstantial evidence is that which can be "inferred from

reasonably and justifiably connected facts." State v. Fairbanks, 32 Ohio St.2d 34

(1972), paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain,

satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353,

1992-Ohio-44. It is to be given the same weight and deference as direct evidence.

State v. Jenks, 61 Ohio St.3d 259 (1991). In addition, the weight to be given to the

evidence and the credibility of the witnesses are issues for the trier of fact. State v.

Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-

Ohio-260.

{¶50} Based upon the evidence presented, we find sufficient evidence, if

believed, to convict appellant of the complained of counts.

{¶51} Assignment of Error IV is denied.
Morrow County, Case Nos. 12CA0004 & 12CA0005 19

{¶52} The judgment of the Court of Common Pleas of Morrow County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.

SGF/sg 421