State v. Dahms

[Cite as State v. Dahms, 2017-Ohio-4221.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-16-16

v.

JEFFREY B. DAHMS, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court
Trial Court No. 15-CR-0163

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: June 12, 2017

APPEARANCES:

Jennifer Kahler for Appellant

Stephanie J. Reed for Appellee
Case No. 13-16-16

PRESTON, P.J.

{¶1} Defendant-appellant, Jeffrey B. Dahms (“Dahms”), appeals the May 6,

2016 judgment entry of sentence of the Seneca County Court of Common Pleas.

For the reasons that follow, we affirm in part, and reverse in part.

{¶2} This case stems from a break-in at a Subway restaurant located in

Fostoria, Ohio around 1:52 a.m. on April 21, 2015 in which an object was thrown

through the restaurant’s window and a cash drawer was stolen. Law enforcement

learned from Kira Harrold (“Harrold”), one of Dahms’s girlfriends, that Dahms was

the person who committed the break-in. Around the time of the break-in, Dahms

was known to stay at the home of his sister, Teresa Brown (“Teresa”), the home of

his friend, Sarah Thornton (“Thornton”) in Findlay, Ohio, or with other friends at

Nye’s Trailer Park in Fostoria, Ohio. The Subway restaurant is located near Nye’s

Trailer Park. After Dahms learned that he was suspected of the break-in, he called

Thornton numerous times and wrote her several letters requesting that she provide

law enforcement with an alibi for him—namely, to tell law enforcement that Dahms

was at her residence the night of April 20-21, 2015. To secure her statement, Dahms

not only promised to repay her $500 that Thornton loaned him, but Dahms also

threatened to turn Thornton into the Hancock County Metropolitan Housing

Authority (“Housing Authority”) for violating the terms of her subsidized-housing

lease.

-2-
Case No. 13-16-16

{¶3} On August 5, 2015, the Seneca County Grand Jury indicted Dahms on

four counts, including: Count One of breaking and entering in violation of R.C.

2911.13(A), (C), a fifth-degree felony; Count Two of bribery in violation of R.C.

2921.02(C), (G), a third-degree felony; Count Three of intimidation of a witness in

a criminal case in violation of R.C. 2921.04(B)(2), (D), a third-degree felony; and

Count Four of attempted complicity to tampering with evidence in violation of R.C.

2923.02(A), (E)(1), 2923.03(A)(1), (F), and 2921.12(A)(1), (B), a fourth-degree

felony. (Doc. No. 1).

{¶4} On August 14, 2015, Dahms appeared for arraignment and entered

pleas of not guilty. (Doc. No. 7). On October 2, 2015, Dahms filed a motion for

relief from “Prejudicial Joinder,” which he withdrew on October 13, 2015. (Doc.

Nos. 22, 34). Also on October 13, 2015, Dahms filed a motion to continue trial,

which the trial court granted. (Doc. Nos. 35, 37). On November 24, 2015, Dahms

filed a motion for “Supplemental Discovery” requesting an evidentiary hearing.

(Doc. No. 43). On November 30, 2015, Dahms filed a motion to continue trial,

which the trial court granted. (Doc. Nos. 45, 47).

{¶5} That same day, Dahms filed a motion for “a Pre-Trial Copy of the

Transcript of the Grand Jury Proceedings.” (Doc. No. 44). On December 3, 2015,

the State filed a memorandum in opposition to Dahms’s motion for “a Pre-Trial

Copy of the Transcript of the Grand Jury Proceedings.” (Doc. No. 48). After a

-3-
Case No. 13-16-16

hearing on December 4, 2015, the trial court granted Dahms’s motion for

supplemental discovery, scheduled an evidentiary hearing for December 17, 2015,

and took under advisement Dahms’s request for a copy of the transcript for the grand

jury proceedings. (Doc. Nos. 50, 51). On December 9, 2015, the trial court denied

Dahms’s request for a copy of the transcript of the grand jury proceedings. (Doc.

No. 53). An evidentiary hearing was held on December 17, 2015. (Doc. No. 56);

(Dec. 17, 2015 Tr. at 1).

{¶6} The case proceeded to a jury trial on April 26-29, 2016. (Doc. No. 85).

The jury found Dahms guilty as to the counts in the indictment. (Doc. Nos. 85, 86);

(Apr. 30, 2016 Tr. at 2-3). On May 6, 2016, the trial court sentenced Dahms to 12

months in prison on Count One, 36 months in prison on Count Two, 36 months in

prison on Count Three, and 18 months in prison on Count Four, and ordered that

Dahms serve the terms consecutively for an aggregate sentence of 102 months.

(Doc. No. 89).

{¶7} On May 25, 2016, Dahms filed his notice of appeal. (Doc. No. 93). He

raises five assignments of error for our review. For ease of our discussion, we will

address Dahms’s first and second assignments of error together, followed by his

third, fourth, and fifth assignments of error.

Assignment of Error No. I

The State failed to support Appellant’s convictions for Bribery
and Intimidation of a Witness with legally sufficient evidence.

-4-
Case No. 13-16-16

Assignment of Error No. II

Appellant’s convictions fell against the manifest weight of the
evidence.

{¶8} In his first assignment of error, Dahms argues that his bribery and

intimidation-of-a-witness-in-a-criminal-case convictions are based on insufficient

evidence.1 In his second assignment of error, Dahms argues that his bribery,

intimidation-of-a-witness-in-a-criminal-case, breaking-and-entering, and

attempted-complicity-to-tampering-with-evidence convictions are against the

manifest weight of the evidence.

{¶9} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). As such, we address each legal concept individually.

{¶10} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

1
Dahms does not challenge the sufficiency of the evidence supporting his other convictions.

-5-
Case No. 13-16-16

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

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing Thompkins at 386.

{¶11} On the other hand, 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.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact 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). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

-6-
Case No. 13-16-16

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

{¶12} At trial, the State offered the testimony of Kira, who testified that she

was sleeping at her sister’s, Kady Harrold (“Kady”), house the night of April 20-21,

2015. (Apr. 26, 2016 Tr., Vol. II, at 160-161). According to Kira, she was woken

early that morning by Dahms, who was her boyfriend at the time. (Id. at 161). Kira

testified that Dahms told her that “he threw a brick through Subway’s window,” and

that Dahms was holding “a wad of cash and a bag full of change.” (Id. at 164-165).

Kira stated that Dahms also told Kady and Kady’s boyfriend, Andy, about what he

had done. (Id. at 165).

{¶13} According to Kira, she revealed to law enforcement that Dahms was

the person who committed the Subway restaurant break-in because she was mad at

him since they “had gotten into it and [she] went to the hospital and spoke with the

officer. And it was just, the truth needed to come out. [Dahms] should be punished

for what he done [sic].” (Id. at 166-167). Kira provided law enforcement with a

written statement reflecting that Dahms committed the Subway restaurant break-in.

(Id. at 167). Kira testified that Dahms called her “a snitch.” (Id.). She further

testified that she received phone calls and letters from Dahms asking her to recant

her statement to law enforcement. (Id. at 169-170). (See also State’s Exs. 8, 9).

-7-
Case No. 13-16-16

Kira identified State’s Exhibit 8 as those letters and read a portion of the letters for

the jury, and identified State’s Exhibit 9 as those phone calls, which were played, in

part, for the jury. (Apr. 26, 2016 Tr., Vol. II, at 169-175); (See also State’s Exs. 8,

9). Kira did not agree to change her statement “[b]ecause it’s the truth.” (Apr. 26,

2016 Tr., Vol. II, at 177).

{¶14} On cross-examination, Kira testified that she alleged in February 2015

to law enforcement that Dahms assaulted her. (Id. at 178). Kira testified that she

went to the hospital in April 2015 after Dahms “drug [her] down the street with a

car” but did not pursue charges against Dahms. (Id. at 180-181).

{¶15} On re-direct examination, Kira testified that she knew specific details

regarding the Subway restaurant break-in, which she reported to Detective Shilo

Frankart (“Detective Frankart”) of the Fostoria Police Department, because Dahms

“told” her those details. (Id. at 182-183).

{¶16} On re-cross examination, Kira testified that she could have learned

those details from someone other than Dahms, but maintained that she heard the

details of the break-in from him. (Id. at 183-184).

{¶17} Next, Kady testified that Dahms told her that “he broke into Subway.”

(Id. at 184-185). She testified that Dahms was at her house “shortly after” the break-

in. (Id. at 185). On cross-examination, Kady clarified that Dahms confessed about

-8-
Case No. 13-16-16

the break-in when she “was just waking up.” (Id. at 190-191). Kady stated Andy

and Kira were also present. (Id. at 191).

{¶18} Richard Ray Evans (“Evans”) testified that he was with Dahms before

the break-in and recalled Dahms asking him if he wanted to “hit a lick,” meaning

“steal some money.” (Id. at 194-196). Evans declined Dahms’s offer, Dahms left,

and Evans again saw Dahms at 1:30 in the morning “[c]arrying a safe box.” (Id. at

196-197). According to Evans, Dahms told him that he got the “safe box” from the

Subway restaurant. (Id. at 197).

{¶19} Evans testified that he recalled a “gray with a blue skull” hooded

sweatshirt belonging to Dahms in Dahms’s vehicle, which Evans took possession

of after Dahms was arrested. (Id. at 199). According to Evans, he “wore [the

hooded sweatshirt] to the mud bogs one day” and that it is “still out at the mud

bogs.” (Id.). Evans testified that Dahms told him where he hid the “safe box” at

Nye’s Trailer Park. (Id. at 206).

{¶20} Evans identified State’s Exhibit 10 as recordings of phone calls that

he received from Dahms, which were played for the jury. (Id. at 200-204); (State’s

Ex. 10). In those phone calls, Dahms can be heard telling Evans to “take that trash

out and fucking get rid of all the junk in my room,” “get rid of that trash,” and to

“[g]et rid of that, bro.” (Apr. 26, 2016 Tr., Vol. II, at 202-204); (State’s Ex. 10).

According to Evans, Dahms was referring to “[t]he safe and then maybe whatever’s

-9-
Case No. 13-16-16

in the car” when he was instructing him to get rid of the “trash.” (Apr. 26, 2016 Tr.,

Vol. II, at 204). Evans testified that he did not get rid of the “safe box.” (Id. at 207).

{¶21} On cross-examination, Evans testified that he did not report to

Detective Frankart that he knew the location of the “safe box.” (Id. at 209).

Regarding the hooded sweatshirt, Evans testified that he could not provide it to

Detective Frankart. (Id. at 211-212). Although Evans did not see the surveillance

video, he knew what hooded sweatshirt Detective Frankart was searching for

because Evans “watched [Dahms] walk down the street in the middle of the

neighborhood with the safe box and the hoody on” after he committed the break-in.

(Id. at 221).

{¶22} On re-direct examination, Evans provided the following clarification

regarding the hooded sweatshirt:

Well, when you go to the mud bogs, it was chilly out, so I had

[the hooded sweatshirt] on. Jumped out of the truck in probably 3 or

4 foot [sic] of mud. Once the hoody was soaked with mud, it was

cold, because it was sort of, like, rainy out.

I took it off. My buddy got stuck on his four-wheeler. We didn’t

have no [sic] rope or no [sic] chain, so I’m like, well, hell, tie this

hoody up to it and try to pull him out. It was a four-wheeler, not a

truck, an ATV.

-10-
Case No. 13-16-16

So we tied the hoody to the bumper of the truck and the ATV

ripped it clean in half when we tried to pull it out, so we just left [the

hooded sweatshirt] there.

(Id. at 223). According to Evans, he did not provide Detective Frankart with the

location of the safe box because of his close friendship with Dahms. (Id. at 224).

{¶23} The State next offered the testimony of Thornton who testified that she

saw Dahms at her residence “about 1:00 in the afternoon” on April 20, 2015. (Apr.

27, 2016 Tr., Vol. I, at 4-5). According to Thornton, Dahms was at her residence

the next morning when she woke around 7:50 a.m. (Id. at 5-6). Thornton went to

bed the previous evening between 11:00 p.m. and 1:00 a.m. (Id. at 6-7). Thornton

received phone calls and letters from Dahms since that day. (Id. at 7). (See State’s

Exs. 11, 12, 13, 14, 15).

{¶24} Thornton identified State’s Exhibit 15 as a recording of a phone call

from Dahms to Thornton, which was played for the jury. (April 27, 2016 Tr., Vol.

I, at 7-8). In that recording, Dahms can be heard telling Thornton about the Subway

break-in and stating,

Just remember that if anybody asks you, because it happened Monday

the 20th. * * * But I stayed at your house on the 20th okay? * * * I

stayed at your house on the 20th, Monday the 20th. All right?

-11-
Case No. 13-16-16

(Id. at 9); (State’s Ex. 15). According to Thornton, Dahms asked her to “[w]rite a

statement” and told her to include in her statement “[t]hat he was at [her] house and

he was there.” (April 27, 2016 Tr., Vol. I, at 22). Thornton did not make that

statement because she “didn’t want to be involved.” (Id. at 22-23). According to

Thornton, she did not know if Dahms left her residence between the time she went

to sleep on April 20 and the time she woke on April 21, 2015. (Id. at 23).

{¶25} Thornton identified State’s Exhibits 11, 12, 13, and 14 as the letters

she received from Dahms. (Id. at 24). In one of the letters, Dahms “mentions giving

[Thornton] $500 for a birthday present for [Thornton’s adult son].” (Id. at 25).

Thornton interpreted that statement to mean that Dahms would repay her the money

that he owed her if she wrote the statement. (Id.). Dahms confesses in that letter

that he owed Thornton money, and Thornton testified that Dahms owed her “about

$400.” (Id.). Thornton testified that Dahms never gave her son money for his

birthday before. (Id.).

{¶26} In another letter, Dahms tells Thornton “that his sister is going to call

[the Housing Authority].” (Id. at 26). Thornton interpreted that statement to mean

that she needed to “[w]rite the statement” to prevent Teresa from calling the

Housing Authority, which would result in Thornton losing her “subsidized housing”

assistance. (Id.).

-12-
Case No. 13-16-16

{¶27} On cross-examination, Thornton testified that she has “some memory

loss because [she] had strokes, so [she] can’t remember everything.” (Id. at 32).

According to Thornton, Dahms asked her to write a statement reflecting that he was

at her residence during the times that she could remember—before she went to sleep

and after she woke. (Id. at 33). Thornton stated that Dahms asked her to write a

truthful statement, not a lie. (Id.). She testified that she would not lie for Dahms.

(Id. at 34). Thornton testified that her sister-in-law, who read Dahms’s letters,

suggested to Thornton that Dahms was trying to bribe her. (Id. at 38). Thornton

testified that she eventually blocked Dahms from being able to call her because he

threatened her for not providing the statement that he wanted her to provide to law

enforcement. (Id. at 48).

{¶28} Thornton testified that Dahms’s bedroom was located on the second

floor of her two-story apartment. (Id. at 42). She stated that she sleeps in a chair in

the living-room portion of her apartment, which is located within hearing distance

of the front and back doors to the apartment. (Id. at 43-44). She testified that she

did not hear Dahms leave the apartment after she went to sleep on April 20, 2015.

(Id. at 44). According to Thornton, when she woke at 7:50 a.m. on April 21, 2015,

she saw Dahms walking down the stairs. (Id. at 44). The Subway restaurant is

approximately 15-20 minutes from Thornton’s apartment. (Id. at 45). Thornton

testified that Dahms did not have a vehicle. (Id.). Thornton was not aware if anyone

-13-
Case No. 13-16-16

provided Dahms a ride from her apartment the night of April 20-21, 2015. (Id. at

46).

{¶29} The following exchange took place regarding Dahms threatening

Thornton:

[Thornton]: I took it as a threat. That’s why I blocked him.

Because he just kept yelling at me. Actually, he called

me a B-word and some, you know, some profound

language he didn’t need to use at me and that’s why I

took it as threatening me.

Because you don’t talk to me like that, especially

you know, when I give you a place to live and, you

know, I’ve been your friend for so many years. But the

way - - he was yelling and screaming at me all the time

and it as, like, what do you want me to do? There ain’t

[sic] really much I can do.

You know, and then he just kept yelling at me.

That’s why he got blocked. He wouldn’t leave me

alone.

[Dahms’s counsel]: Because he wanted you to give that statement and you

decided you wouldn’t give that statement - -

-14-
Case No. 13-16-16

[Thornton]: Right.

(Id. at 48). The defense then played for the jury another phone call from Dahms to

Thornton. (Id. at 50); (State’s Ex. 15). In that recording, Dahms can be heard saying

to Thornton,

Listen. Sunday, Monday, and Tuesday night, I was there. And

then Wednesday is when I went to Fostoria. I went to Fostoria

Wednesday night, stayed overnight with Kira, and then came back on

Thursday and started my job. Because Wednesday night is when I got

my car.

And I want you to tell him that * * * Tell him that you’ll go to

court for me.

(Apr. 27, 2016 Tr., Vol. I, at 52). Thornton testified that she was concerned that

she would be in trouble if she were to provide a statement to law enforcement. (Id.

at 63).

{¶30} Rickey Perrin (“Perrin”) testified on behalf of the State. (Id. at 63).

In exchange for his testimony, Perrin received a favorable sentence for his drug-

related conviction. (Id. at 64). Perrin testified that he was incarcerated with Dahms

and that Dahms confessed to smashing the window of the Subway restaurant and

stealing a cash box. (Id. at 65-67). Regarding Thornton, Perrin testified that Dahms

told him

-15-
Case No. 13-16-16

that [Thornton] was a girl that he was claiming that he stayed the night

at her house and that she was confused because he know [sic] he didn’t

stay the night there, but she didn’t know what she was talking about

because the things she was saying was making him look good.

(Id. at 68).

{¶31} On cross-examination, although Perrin was in the courtroom at the

time of Dahms’s evidentiary hearing, Perrin testified that he did not remember any

of the evidence presented during Dahms’s hearing because he “was trying to get out

of jail that day, too, so [he] didn’t pay no [sic] attention to what was going on with

[Dahms].” (Id. at 70). However, on re-cross examination, Perrin recalled that

Dahms’s evidentiary hearing lasted “for a long time.” (Id. at 85).

{¶32} Detective Frankart testified that he investigated the Subway restaurant

break-in. (Apr. 27, 2016 Tr., Vol. II, at 90-92). According to Detective Frankart,

Kira reported to law enforcement that Dahms was the person who broke into the

Subway restaurant. (Id. at 97). Kira reported to law enforcement that Dahms

confessed to her to throwing a brick through the Subway restaurant’s window and

stealing the cash drawer—facts which were not known to the public. (Id. at 98).

Kira reported that she saw Dahms the night of the break-in and saw that he had

$300, which matched the amount of money stolen from the Subway restaurant. (Id.

at 97-98).

-16-
Case No. 13-16-16

{¶33} Detective Frankart identified State’s Exhibit 20 as a disc containing

audio recordings of Dahms’s phone calls to Teresa. (Id. at 117). One of those phone

calls was played for the jury in which Dahms can be heard telling Teresa “to go get

[Thornton] and get a statement to the police.” (Id. at 120); (State’s Ex. 20). Dahms

can further be heard telling Teresa,

Because when they take this stuff to the grand jury * * * I need you to

have that statement in with that stuff so they can say, “Well, the guy,

this lady’s claiming that he stayed overnight.”

Do you know what I mean? And [Thornton] know [sic] that I stayed

there.

(Apr. 27, 2016 Tr., Vol. II, at 120); (State’s Ex. 20). Later in the conversation,

Dahms can be heard instructing Teresa, “All I wanted you to do was pick up the *

* * statement [from Thornton] that I wrote out and had notarized.” (Apr. 27, 2016

Tr., Vol. II, at 125); (State’s Ex. 20).

{¶34} Detective Frankart testified that Dahms identified Thornton as an alibi

witness for the night of the Subway break-in. (Apr. 27, 2016 Tr., Vol. II, at 108).

He stated, “During the first interview, she was not a main defense of his. It became

as the investigation proceeded, she became a main defense of him, his alibi for the

night.” (Id. at 109). Detective Frankart identified State’s Exhibits 11, 12, 13, and

-17-
Case No. 13-16-16

14 as the letters that Dahms wrote to Thornton. (Id. at 149-150); (State’s Ex. 11,

12, 13, 14). Detective Frankart read portions of those letters for the jury:

“Sarah, my sister is mad and saying she’s going to call the lady

at your office and call [the Housing Authority] on you. She is mad

because I stayed that night but now you won’t help me.”

***

“I need you to write that statement, Sarah. If you don’t write it,

my lawyer said they are going to charge me. If that happens, then he’s

going to have to make you come to court, like, five times and then you

also have to come to trial. And if you don’t show up to court all those

times, the judge will have you arrested.

Do you have a ride to court? Hell no, you don’t. It would be a

lot better if you would just write the statement and turn it in, because

then I won’t even get charged and nobody even has to go to court.

Teresa. Teresa told me if you turn your back on me, then she

will call [the Housing Authority] on you and tell them I lived with you

and you will lose your [housing assistance] because she is mad that

you don’t answer the phone.

-18-
Case No. 13-16-16

I am supposed to start school in August. If they charge me, I

won’t be able to. I will get $3,000 in loans, and I told you I will give

you $500 for a late birthday present for [Thornton’s adult son].

P.S. Please do this. My sister’s mad and wants to call [the

Housing Authority].”

(Apr. 27, 2016 Tr., Vol. II, at 151-52); (State’s Exs. 12, 13).

{¶35} Detective Frankart identified State’s Exhibit 17 as the surveillance

video depicting the break-in of the Subway restaurant, which was subsequently

played for the jury. (Apr. 27, 2016 Tr., Vol. II, at 94); (State’s Ex. 17). Although

the individual seen in the surveillance video is unidentifiable from the video,

Detective Frankart testified that Dahms matches the build of the person seen in the

video. (Apr. 27, 2016 Tr., Vol. II, at 96-97, 145). Detective Frankart testified that

the surveillance video depicts only one perpetrator. (Id. at 101). He further testified

that his investigation revealed that Dahms was receiving transportation from others

because his vehicle was impounded prior to the Subway restaurant break-in. (Id. at

113). Detective Frankart testified that Evans told him that Dahms stole “over $300”

from the Subway restaurant, and that Evans told Detective Frankart where Dahms

hid the safe box. (Id. at 102). Detective Frankart found the safe box where Evans

told him Dahms hid it. (Id. at 102-103). Regarding the hooded sweatshirt, Detective

Frankart testified, “Through my investigation, I found out that, according to Teresa

-19-
Case No. 13-16-16

Brown and [Evans], that a hooded sweatshirt was in [Dahms’s] vehicle.” (Id. at

107). However, Detective Frankart was unable to retrieve that hooded sweatshirt.

(Id.).

{¶36} Detective Frankart identified State’s Exhibit 7 as an extraction report

depicting Facebook messages between Dahms and Kira. (Id. at 154). In one

message from Dahms to Kira on April 20, 2015 at 4:39 p.m., Dahms informs Kira

that he “will be there in a bit”—meaning that he would be at Nye’s Trailer Park in

a bit. (Id. at 156); (State’s Ex. 7).

{¶37} Detective Frankart testified that Dahms claimed that another

individual, Kyle Yonikuss (“Yonikuss”), was the person who committed the

Subway restaurant break-in. (Id. at 157). Detective Frankart investigated Dahms’s

claim and learned from another law-enforcement officer that Yonikuss “had a

warrant for a theft” and that Yonikuss was believed to have “left town and went to

Wyoming.” (Id. at 157-158). Through his investigation, Detective Frankart did not

find any evidence that Dahms accused Yonikuss of the break-in to Kira, or any

communications between Kira and Yonikuss, but learned from Evans that Yonikuss

did not commit the break-in. (Id. at 158). Evans confirmed that Yonikuss “went to

Wyoming prior to the break-in.” (Id.). According to Detective Frankart, Dahms

blamed the break-in on Yonikuss because Yonikuss previously blamed a theft on

Dahms for which Dahms was criminally charged. (Id. at 159).

-20-
Case No. 13-16-16

{¶38} Detective Frankart testified that he concluded that Dahms’s motive to

commit the Subway restaurant break-in was to be able to “get his vehicle out of

impound.” (Id. at 110). He testified that Dahms’s versions of events were not

consistent and “were all over the place,” especially regarding how he obtained the

money to pay his vehicle’s impounding fees. (Id. at 110-111).

{¶39} On cross-examination, Detective Frankart testified that Thornton

confirmed that Dahms was at her residence when she went to sleep and when she

woke. (Apr. 29, 2016 Tr., Vol. I, at 115). Thornton further confirmed that she

sleeps by the front door but did not hear Dahms leave or return the night of April

20-21, 2015. (Id.). Detective Frankart testified that he did not find any messages

on Dahms’s phone seeking a ride from Findlay to Fostoria the night of the Subway

restaurant break-in. (Apr. 27, 2016 Tr., Vol. II, at 202).

{¶40} Detective Frankart read for the jury a portion of his investigative

statement,

“Through my investigation, I found that Sarah Thornton is a close

friend of [Dahms’s], who he has known for approximately 13 years.

She is also someone [Dahms] feels is easily manipulated, even

[“]retarded” * * * as he referenced her in several telephone calls to his

sister, Teresa Brown.”

-21-
Case No. 13-16-16

(Apr. 29, 2016 Tr., Vol. I, at 159). He testified that he “listened to the phone calls

between [Thornton] and [Dahms]. [He] read the letters afterwards and saw how he

was pounding things into her head trying to manipulate her. That’s why [he] put

he’s manipulating [Thornton]. He was trying.” (Id. at 162). He further testified

that Dahms

didn’t tell [him] to talk to [Thornton]. He said he didn’t think she’d

remember anything. And then as soon as [Detective Frankart] started

listening to jail phone calls, he was on the phone talking to [Thornton],

“Remember, I was there from April 17th on.” He was setting it up.

(Id. at 155). Detective Frankart read another portion of one of Dahms’s letters to

Thornton for the jury:

“All you need to do is tell the truth. I don’t care how you write

it or what you say. Just tell them the truth: that I was at your house

and stayed there the night of Monday, April 20th, and had a job

orientation the next morning at 8:00 a.m. Sarah, please.”

***

“I did not do [sic]. Please. Also, tell them how Kira lies to the

cops. She lied in February to cause me trouble to remember[?] Listen,

please. I need you and you know I would help you.”

(Id. at 132). (See also State’s Ex. 13).

-22-
Case No. 13-16-16

{¶41} Detective Frankart testified that, although he never dealt with

Yonikuss, Evans informed him that Yonikuss and Dahms have a similar height and

build. (Apr. 27, 2016 Tr., Vol. II, at 162-163). He agreed that it was possible that

Yonikuss was in Fostoria on April 20-21, 2015 because he could not confirm

whether Yonikuss was in Wyoming. (Id. at 222-224); (Apr. 29, 2016 Tr., Vol. I, at

112).

{¶42} He further testified that Dahms told him that “Kira has tried to cause

trouble with the police for [Dahms]” in the past. (Apr. 27, 2016 Tr., Vol. II, at 210-

211). Detective Frankart testified that Evans or Andy told him that it is “a pretty

good assumption” that Kira would lie to get Dahms in trouble. (Id. at 212-213).

Regarding the hooded sweatshirt, he testified that Evans was in possession of the

hooded sweatshirt, but told him that it was destroyed after being used “to pull a four-

wheeler out with it, and [Evans] ripped it in half and left it where it laid.” (Apr. 29,

2016 Tr., Vol. I, at 119).

{¶43} On re-direct examination, Detective Frankart testified that his

investigation revealed that Dahms told Kira, Kady, Evans, Andy, and Perrin that he

committed the Subway restaurant break-in. (Id. at 165). In the audio recordings of

Dahms’s phone calls, which were played for the jury, Dahms did not accuse

Yonikuss of the break-in. (Id. at 166). Dahms was the only person who claimed

-23-
Case No. 13-16-16

that Yonikuss was the perpetrator. (Id. at 172). However, multiple witnesses

indicated that Dahms perpetrated the break-in. (Id. at 172-173).

{¶44} Detective Frankart testified that Kira’s story did not change

throughout his investigation. (Id. at 167). Regarding the video recording of Kira’s

interview, which was played for the jury, Kira can be heard telling Detective

Frankart that the break-in occurred April 19-20, 2015. (Id. at 167). However,

Detective Frankart testified that Kira later called him to tell him that she was

mistaken about the date of the brake-in and “corrected” her statement. (Id. at 168-

169). Detective Frankart testified that Kira’s phone call correcting her statement

made her statement “even more significant.” (Id. at 169). He testified that, in

addition to telling him what Dahms told Kira about the break-in, Kira reported that

she observed Dahms “with a wad of cash, change, and a ‘Thank You’ bag. And she

knew it was over $300, because [Dahms] counted it in front of her.” (Id. at 171).

Although Evans and Andy indicated that Kira might lie, Evans and Andy confirmed

Kira’s story that Dahms committed the break-in. (Id. at 171-172).

{¶45} On re-cross examination, Detective Frankart testified that, because

Kira, Kady, Andy, and Evans live within close proximity to each other at Nye’s

Trailer Park, they could have colluded to blame the break-in on Dahms. (Id. at 178).

However, he testified that Andy and Evans’s collusion did not “make sense, because

Andy and [Evans] really did not want to testify against [Dahms]. Neither wrote a

-24-
Case No. 13-16-16

statement. They both showed up because they were subpoenaed.” (Id. at 178-179).

Neither Evans nor Andy wanted to be involved in the case against Dahms, which is

why Andy did not appear at trial to testify. (Id. at 179)

{¶46} After the State presented its witnesses, it moved to admit its exhibits.

(Apr. 29, 2016 Tr., Vol. II, at 184). Dahms objected to State’s Exhibits 7 and 20,

which were admitted over Dahms’s objections. (Id. at 184-185). The remainder of

the State’s exhibits were admitted without objection, and the State rested. (Id. at

186). Next, Dahms made a Crim.R. 29(A) motion, which the trial court denied. (Id.

at 186-188).

{¶47} The defense called five witnesses. As one of its witnesses, the defense

called Teresa to testify. (Apr. 29, 2016 Tr., Vol. II, at 256). Teresa testified that

she spoke with Thornton “three or four times a day.” (Id. at 291). According to

Teresa, Thornton was “adamant” that Dahms stayed at her house the night of April

20-21, 2015. (Id. at 292-293).

{¶48} Teresa testified that Dahms “wanted [her] to go help [Thornton] do [a

statement for law enforcement] because [Thornton] can’t – she can’t write. She

can’t spell.” (Id. at 264). Teresa testified that Dahms “just wanted [her] to go over

and let [Thornton] say what she wanted [her] to write, because she can’t spell or

write,” and that he wanted Thornton to tell the truth. (Id. at 276-277). Teresa did

not help Thornton write that statement because Thornton

-25-
Case No. 13-16-16

said that she was going to write a statement and she never did. And

she told me numerous, numerous times that [Dahms] was there that

night. I mean, “There’s no way he could have done it,” come out of

her mouth, and “He was there.”

(Id. at 264). She further testified,

I never really refused to help [Thornton] write her statement.

[Thornton] just kind of flim-flammed [sic] around, like, “Yeah, I’m

going to do it. No, I don’t want to do it. Yeah, I’m going to do it.

Well, if they need me in court, I’ll just go to court for him.”

I mean, I more or less had to bribe her in the form of two bags of

groceries to go pick up [Dahms’s] clothes and stuff. And there, I had

to leave a message to tell her that I had groceries for her so she would

even call me back.

(Id. at 276). Teresa testified that Dahms owed Thornton “close to $500” because

Thornton loaned him money to pay for his court fines. (Id. at 293).

{¶49} Teresa testified that she wrote to Dahms and told him that she “was

going to call [the Housing Authority] on [Thornton]” to report her for allowing

Dahms to stay with her so that Thornton would lose her housing assistance. (Id. at

290). As a result, Dahms wrote a letter to Thornton telling her that Teresa was going

-26-
Case No. 13-16-16

to report her. (Id. at 290-291, 293). According to Teresa, Thornton was upset with

Dahms for not paying her back. (Id. at 294).

{¶50} On cross-examination, the State played for the jury an audio recording

of a June 30, 2015 conversation between Teresa and Detective Frankart. (Id. at

302). In that recording, Teresa can be heard telling Detective Frankart that Thornton

called her, after receiving Dahms’s letter threating to report Thornton to the Housing

Authority, to tell Teresa that she received “a bad letter” from Dahms. (Id. at 309).

Also in that conversation, Teresa can be heard denying to Detective Frankart that

she threatened to report Thornton to the Housing Authority. (Id. at 304). Further,

Teresa can be heard telling Detective Frankart that she received a letter from Dahms

instructing her to write a statement for Thornton and instructing her to begin the

statement by writing, “my name is Sarah -- whatever her name, Thorn --.” (Id. at

324-325). She can be heard explaining that Dahms wanted her to lie for him and

“say [she] seen [sic] [him when she] didn’t see him” because she doesn’t “know

where he was that night.” (Id. at 336). She continued,

And just like me [sic] and [Thornton] talked, well, if this goes all the

way to trial and [Thornton] knows something about it, don’t write a

statement. Let them subpoena you in. Then you’re going to be on the

bench. And if you lie, you lie. * * * Then you’re in trouble.”

-27-
Case No. 13-16-16

(Id. at 337). Teresa testified that she lied to Detective Frankart about threatening to

report Thornton to the Housing Authority because she “did not want to get in

trouble.” (Id. at 315).

{¶51} Dahms testified in his defense. (Apr. 29, 2016 Tr., Vol. III, at 365).

He testified that “slept at [Thornton’s] house that night” and “woke up at

[Thornton’s] house that morning.” (Id. at 378). Further, he testified that he did not

go to Fostoria on the night of April 20-21, 2015. (Id.).

{¶52} Regarding Thornton, he testified that he “did not bribe [Thornton].

[He] owed [Thornton] money. [He] owed [Thornton] a lot of money.” (Id. at 385).

Dahms identified State’s Exhibit 13 as a letter he wrote to Thornton, and explained

that he wrote the letter because he “wanted her to write a statement for [him]. All

though the letter, [he] asked her to tell the truth. That’s all [he] wanted [Thornton]

to do from the start.” (Id. at 386). According to Dahms, he “[n]ever asked her to

lie for [him]. There’s not one mention in any of [his] letters where [he] ever asked

her to lie.” (Id.). To bolster his testimony, Dahms read from the letter:

It says, “Listen, all I want you to do is tell the truth. I need you to

write a statement, Sarah. If you don’t write it, my lawyer said that

they are going to charge me.” * * * I am supposed to start school again

in August. If they charge me, I won’t be able to. I will get $3,000 in

-28-
Case No. 13-16-16

loans, and I told you I would give you $500 for a late birthday present

for [Thornton’s adult son]”

(Id. at 386-387).

{¶53} According to Dahms, he owed Thornton money because she was

“giving [him] money to pay court fines.” (Id. at 387). Further, he testified that he

said in his letter that the $500 would be a “late birthday present” for Thornton’s

adult son because the money that Thornton loaned to him was money that Thornton

planned to spend on her son’s birthday, and Thornton told Dahms that he needed to

return that money to her so she could spend it for the birthday. (Id.). Dahms

clarified that the letter states, “‘I told you I would give you $500,’ It doesn’t say, ‘I

will give you $500.’” (Id.). Dahms testified that Thornton “blocked [his] calls

because [he] was calling her so much * * * [but he] wanted [Thornton] to tell the

truth[, he] never asked [Thornton] to lie.” (Id. at 390). Dahms thought that

Thornton blocked his calls because she wanted the money that he owed her, not

because he was intimidating her. (Id.).

{¶54} On cross-examination, the State played for the jury a video recording

of Detective Frankart’s interview of another girlfriend of Dahms’s, Stephanie

Thompson (“Thompson”), whom Dahms claims was also with him the night of

April 20-21, 2015, along with another person named “Jade.” (Id. at 408-409). In

the video recording, Thompson can be heard telling Detective Frankart that she

-29-
Case No. 13-16-16

spent the night with Dahms at Thornton’s house in March and April 2015. (Id. at

412). Thompson recalled that one of the nights she was spending with Dahms, she

noticed “two cop cars” outside Thornton’s residence “[a]round maybe between,

like, 10:00 or 12:00.” (Id. at 425). According to Thompson, she knew that Dahms

“was always in trouble, so [she] text [sic] him and [she] told him, ‘There’s two cop

cars out here’ * * * ‘I think there’s two cop cars out here. I was just letting you

know before you pull back in.’” (Id. at 425-426). Thompson told Detective

Frankart that Dahms was in Fostoria “[f]eeding his dog,” which is slang for

“[g]etting around with his buddies.” (Id. at 426). Thompson told Detective Frankart

that Dahms returned around 4:00 a.m. (Id. at 427). Thompson could not recall if

that was on the evening of April 20-21, 2015 because she had been drinking. (Id.

at 427-428). Later in the conversation, she did not think it was that evening because

she remembered that Dahms drove his car that night and Dahms’s car was

impounded on April 13, 2015. (Id. at 428, 430). However, Thompson thought she

was with Dahms the night of April 20-21, 2015 because she “bought him food” on

April 20, 2015. (Id. at 430). Thompson again changed her mind later in the

conversation and stated that she “was not there.” (Id. at 432). Thompson blamed

her difficulty remembering on her drinking. (Id.).

{¶55} Nevertheless, Dahms testified that he did not tell Detective Frankart

that Thompson or “Jade” could provide an alibi for him for the night of April 20-

-30-
Case No. 13-16-16

21, 2015 because Detective Frankart “didn’t ask.” (Id. at 436). Dahms admitted

that he did not have statements from Thompson or “Jade” or offer testimony from

either witness. (Id.).

{¶56} Thereafter, the defense moved to admit its exhibits, which were

admitted without objection, and rested. (Id. at 446-447). The State did not present

any witnesses on rebuttal. (Id. at 447). Dahms renewed his Crim.R. 29 motion and

his motion for a mistrial, which were denied. (Id. at 448). The matter was submitted

to the jury, which found Dahms guilty as to the counts of the indictment. (Id. at

513); (Apr. 30, 2016 Tr. at 2-3).

{¶57} We first review the sufficiency of the evidence supporting Dahms’s

bribery and intimidation-of-a-witness-in-a-criminal-case convictions. State v.

Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v.

Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). We

will begin by addressing his sufficiency-of-the-evidence argument as it relates to

his bribery conviction, then we will address his sufficiency-of-the-evidence

argument as it relates to his intimidation-of-a-witness-in-a-criminal-case

conviction.

{¶58} The criminal offense of bribery is codified in R.C. 2921.02, which

provides, in relevant part:

-31-
Case No. 13-16-16

(C) No person, with purpose to corrupt a witness or improperly to

influence a witness with respect to the witness’s testimony in an

official proceeding, either before or after the witness is subpoenaed or

sworn, shall promise, offer, or give the witness or another person any

valuable thing or valuable benefit.

R.C. 2921.02(C).

{¶59} Under his first assignment of error, Dahms specifically argues that

there is insufficient evidence that he committed bribery because there is insufficient

evidence that he: (1) “intended to corrupt or otherwise improperly influence

[Thornton’s] testimony;” (2) offered Thornton a valuable thing or benefit; or (3)

influenced Thornton’s testimony in an official proceeding. (Appellant’s Brief at

18).

{¶60} First, we address whether the State presented sufficient evidence that

Dahms intended to (1) corrupt the witness or (2) improperly influence her with

respect to her testimony in an official proceeding either before or after she was

subpoenaed or sworn. See State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-

Ohio-2511, ¶ 56, citing R.C. 2921.02(C). Dahms argues that, because he did not

ask Thornton to lie for him, there is insufficient evidence that he intended to corrupt

Thornton or otherwise improperly influence her testimony. Stated differently,

-32-
Case No. 13-16-16

Dahms argues that he cannot be convicted of bribery for “encouraging” Thornton

to provide “truthful testimony.” (Appellant’s Brief at 18).

{¶61} “[O]ne way to commit bribery under R.C. 2921.02(C) is to offer a

valuable thing or benefit with the purpose to corrupt a witness.” Marshall at ¶ 61.

“To corrupt” “means to destroy or undermine the honesty or integrity of another, to

taint, to affect.” Id. at ¶ 57. The trial court similarly defined “to corrupt” in its

instructions to the jury.2 (See Apr. 29, 2016 Tr., Vol. III, at 500).

{¶62} Dahms avers that he cannot be convicted of bribery if he merely

encouraged Thornton to “tell the truth.” Dahms’s argument is erroneous. Evidence

of a defendant expressly asking a witness to change their testimony is not required

for the “corrupt” form of bribery. Marshall at ¶ 61. Indeed, the State presented

sufficient evidence that Dahms intended to corrupt Thornton. The State presented

evidence of letters and phone calls from Dahms to Thornton in which he repeatedly

asks Thornton to provide law enforcement a statement indicating that Dahms stayed

at her residence on April 20-21, 2015. Thornton did not want to make a statement

because she did not want to be involved and because she did not want to get in

trouble. Yet, to secure her statement, Dahms offered to repay Thornton the money

that he owed her.

2
The trial court defined “to corrupt” for the jury as “to destroy or undermined the honesty or integrity of
another, to taint, or to infect.” (Emphasis added.) (Apr. 29, 2016 Tr., Vol. III, at 500). We presume that the
trial court meant to say “affect,” not “infect.”

-33-
Case No. 13-16-16

{¶63} Further, while Dahms minimizes his interactions with Thornton,

Dahms ignores the evidence in the record that he was manipulating or “coaching”

Thornton to tell his version of the truth. Purposefully manipulating or coaching a

witness to tell a defendant’s version of the truth is within the meaning of to

corrupt—that is, purposely encouraging a witness to provide the defendant’s version

of the truth is to taint or affect the honesty or integrity of another. See State v.

Halleck, 308 N.W.2d 56, 59 (IA.1981) (“To improperly influence a witness is not

limited to asking a witness to lie. * * * An improper influence includes offers of a

bribe to ‘persuade the witness to shade or color his testimony in a certain way,

without actually lying.’”), quoting 4 Yeager & Carlson, Iowa Practice: Criminal

Law and Procedure, 445 (1979), and citing State v. Ventola, 122 Conn. 635, 640

(1937) and State v. Liss, 145 Minn. 45, 51 (1920); Liss at syllabus (concluding that

the “defendant’s belief in the truth of the statement which by the payment of money

he was influencing the witness to make was not a defense”). See also Annotation,

Falsity of contemplated testimony as condition of offense of bribery of, attempt to

bribe, or acceptance of bribe or gift by, prospective witness, 110 A.L.R. 582

(Originally published 1937) (looking to the common law roots of the offense of

bribery and noting that “The dictum that it seemed to be a common-law offense to

offer money to swear to a particular thing, ‘whether true or false,’ was expressed in

R. v. Darby, (1702) 87 Eng. Rep. 1121.”).

-34-
Case No. 13-16-16

{¶64} Thornton suffered from memory loss from her strokes, and Dahms

knew that Thornton was easily manipulated and even referred to her as “retarded.”

Thornton testified that not only did Dahms ask her to write a statement, but also told

her to include in her statement that Dahms was at her residence on that date. There

is abundant evidence in the record of Dahms manipulating or coaching Thornton to

remember his version of the truth through his numerous letters and phone calls to

Thornton—that is, the record reflects that Dahms was purposefully persuading

Thornton “to shade or color [her statement] in a certain way.” See Halleck at 59

(concluding that the State provided sufficient evidence that Halleck committed

bribery because Halleck “‘did intend to direct the nature, character, mode and

manner of the testimony’”).

{¶65} As such, we conclude that Dahms’s manipulation or coaching of

Thornton to provide law enforcement with his version of the truth coupled with his

promise to repay Thornton the money that he owed her in exchange for her statement

is sufficient evidence that Dahms acted with purpose to corrupt Thornton. See

Marshall, 2015-Ohio-2511, at ¶ 65 (“A reasonable jury could also conclude that

Marshall acted with purpose to corrupt when he sought to influence or change

M.T.’s likely position at Castro’s sentencing by offering her money.”).

{¶66} Second, Dahms argues that there is insufficient evidence that he

offered Thornton a valuable thing or benefit because Dahms was merely offering to

-35-
Case No. 13-16-16

return money to Thornton that he previously borrowed from her. “There can be no

doubt that money is a ‘valuable thing or benefit’ for the purposes of R.C. 2921.02.”

Marshall at ¶ 60. Whether Dahms’s promise of payment to Thornton was the

promise of the repayment of a loan or was the promise of a gift is inconsequential.

See State v. Nader, 8th Dist. Cuyahoga No. 43697, 1982 WL 5208, *4 (concluding

that there was sufficient evidence that Nader committed bribery “[r]egardless of

whether the payments are designated as a loan or gift” because Nader intended to

influence the city building inspector); State v. Lieberman, 114 Ohio App. 339, 343

(10th Dist.1961) (concluding that the refund of the payment for realty constitutes a

valuable thing or benefit). Indeed, regardless of whether Dahms’s promise to pay

Thornton is designated as the repayment of a loan, gift, or otherwise, he intended to

corrupt Thornton with his promise to repay her the $500 that he owed her.

{¶67} Finally, Dahms argues that there is insufficient evidence that he

influenced Thornton’s testimony in an official proceeding because “[m]aking a

statement to the police prior to any indictment is not an ‘official proceeding.’”

(Appellant’s Brief at 19). “[T]here are two distinct ways to commit bribery under

statute: (1) offering or giving any valuable thing or benefit with purpose to corrupt

a witness; or (2) offering or giving any valuable thing or benefit to improperly

influence a witness.” (Emphasis added.) Marshall at ¶ 46. The modifier, “with

respect to the witness’s testimony in an official proceeding” applies only to the

-36-
Case No. 13-16-16

“improperly influence” form of bribery, not the “corrupt” form of bribery. See id.

Because we conclude that there is sufficient evidence that Dahms committed the

“corrupt” form of bribery, Dahms’s argument is not well taken, and we need not

address whether there is sufficient evidence of the modifier requiring the witness’s

testimony be part of an official proceeding.

{¶68} Accordingly, we conclude that a rational trier of fact could have found

beyond a reasonable doubt that Dahms committed bribery. As such, Dahms’s

bribery conviction is based on sufficient evidence.

{¶69} Moving to his intimidation-of-a-witness-in-a-criminal-case

conviction, Dahms argues that there is insufficient evidence that: (1) he intimidated

a witness in a criminal case because there is insufficient evidence that the witness

was a witness as defined by the statute; and (2) he made an unlawful threat.

{¶70} The criminal offense of intimidation of a witness in a criminal case is

codified in R.C. 2921.04, which provides, in relevant part:

No person, knowingly and by force or by unlawful threat of harm to

any person * * * or by unlawful threat to commit any offense or

calumny against any person, shall attempt to influence, intimidate, or

hinder any of the following persons:

***

-37-
Case No. 13-16-16

(2) A witness to a criminal * * * act by reason of the person being a

witness to that act.

R.C. 2921.04(B)(2).

{¶71} First, we will address whether the State presented sufficient evidence

that Thornton is a witness as defined under the statute. The statute defines a

“witness” as “any person who has or claims to have knowledge concerning a fact or

facts concerning a criminal * * * act, whether or not criminal * * * charges are

actually filed.” R.C. 2921.04(E).3

{¶72} Dahms argues that “Thornton was not a witness to the alleged

crime”—that is, that “[s]he had no knowledge of the evens that happened at Subway

or [Dahms’s] alleged involvement in said act.” (Appellant’s Brief at 19). However,

Dahms’s argument is belied by the fact that he alleged that Thornton was his alibi

witness during the time the break-in of the Subway restaurant occurred. Clearly, an

alibi witness is a person who has or claims to have knowledge concerning a fact or

facts concerning a criminal act—namely, that the accused did not commit the

criminal act of which they are accused of committing. See State v. Wallace, 9th

Dist. Lorain No. 06CA008889, 2006-Ohio-5819, ¶ 19 (“An alibi witness is defined

as “[a] witness who testifies that the defendant was in a location other than the scene

3
R.C. 2921.04 was amended in 2012 to add the definition of a witness. 2012 Sub.H.B. 20, 2012 Ohio Laws,
File 83. See also State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654, ¶ 3, fn.1 (acknowledging the General
Assembly’s amendment of R.C. 2921.04 broadening the definition of a “witness” under the statute).

-38-
Case No. 13-16-16

of the crime at the relevant time.”) (Emphasis sic.), quoting Black’s Law Dictionary

1633 (8th Ed.2004).

{¶73} The State presented sufficient evidence that Thornton is a witness as

defined under R.C. 2921.04(E). That is, a rational trier of fact could conclude that

Thornton had knowledge concerning facts concerning a criminal act—namely,

knowledge that Dahms was in a location other than the Subway restaurant at the

time of the break-in—making her a witness as defined by R.C. 2921.04(E). See

State v. Brent, 10th Dist. Franklin No. 14AP-187, 2014-Ohio-5246, ¶ 16. That

Thornton did not witness the criminal act does not preclude her from being a witness

as defined by R.C. 2921.04(E). See State v. Fonseca, 3d Dist. Henry No. 7-16-04,

2016-Ohio-7348, ¶ 18, citing State v. Fox, 5th Dist. Licking No. 13-CA-71, 2014-

Ohio-1652, ¶ 31 (“Appellant maintains he could not be convicted of intimidation of

a witness because Spires was not a witness to the alleged offense as she did not see

what occurred between himself and A.M. Appellant’s assertion has no merit.”).

{¶74} Next, Dahms argues that he cannot be convicted of intimidating a

witness in a criminal case because there is insufficient evidence that he made an

unlawful threat of harm. “The Supreme Court of Ohio has held that ‘an unlawful

threat of harm’ is satisfied only when the very making of the threat is itself unlawful

because it violates established criminal or civil law.’” State v. Jackson, 12th Dist.

Fayette No. CA2011-01-001, 2011-Ohio-5593, ¶ 48, quoting State. v. Cress, 112

-39-
Case No. 13-16-16

Ohio St.3d 72, 2006-Ohio-6501, ¶ 42. Stated differently, “‘the threat itself, not the

threatened conduct, must be unlawful.’” State v. Khaliq, 5th Dist. Licking No. 15-

CA-64, 2016-Ohio-7859, ¶ 27, quoting State v. Yambrisak, 5th Dist. Richland No.

2012-CA-50, 2013-Ohio-1406, ¶ 31, citing Cress at ¶ 38. “‘An unlawful threat must

accordingly connote more than just a threat, i.e. more than just a communication to

a person that particular negative consequences will follow should the person not act

as the communicator demands.’” Jackson at ¶ 48, quoting Cress at ¶ 41. “Thus, the

Supreme Court’s decision in Cress suggests that in order for the state to meet its

burden in an R.C. 2921.04(B) prosecution, the threat must violate a predicate

offense.” Id., citing Cress at ¶ 42-43 and State v. Armstrong, 9th Dist. Summit No.

24479, 2009-Ohio-5941, ¶ 19. “However, the Court in Cress did not hold that the

‘predicate offense’ must be identified in the indictment or otherwise specified by

the state.” Id., citing State v. Ott, 11th Dist. Portage No. 2007-P-0093, 2008-Ohio-

4049, ¶ 26 and Armstrong at ¶ 19.

{¶75} The State presented sufficient evidence that Dahms made an unlawful

threat because the State presented sufficient evidence that Dahms committed the

predicate offense of coercion in violation of R.C. 2905.12. See Cress at ¶ 43

(concluding that conduct constituting the offense of coercion under R.C. 2905.12

serves “as a predicate offense for the crime of witness intimidation as proscribed by

-40-
Case No. 13-16-16

R.C. 2921.04(B)”). The criminal offense of coercion is codified under R.C.

2905.12, which provides:

(A) No person, with purpose to coerce another into taking or

refraining from action concerning which the other person has a legal

freedom of choice, shall do any of the following:

(1) Threaten to commit any offense;

(2) Utter or threaten any calumny against any person;

(3) Expose or threaten to expose any matter tending to subject any

person to hatred, contempt, or ridicule, to damage any person’s

personal or business repute, or to impair any person’s credit;

(4) Institute or threaten criminal proceedings against any person;

(5) Take, withhold, or threaten to take or withhold official action, or

cause or threaten to cause official action to be taken or withheld.

R.C. 2905.12(A). Indeed, a rational trier of fact could conclude that Dahms

intended to coerce Thornton to provide law enforcement with a statement by

threatening to take official action by reporting Thornton to the Housing Authority.

See State v. Zylko, 8th Dist. Cuyahoga No. 89949, 2008-Ohio-3032, ¶ 41

(concluding that “the trial court could have reasonably inferred from defendant’s

statements in the phone call to Deacon Senn that his intention was to intimidate or

coerce Deacon Senn from pressing charges or cooperating in defendant’s criminal

-41-
Case No. 13-16-16

prosecution by making a false charge or misrepresentation maliciously calculated

to harm Deacon Senn’s reputation.”). As such, viewing the evidence in a light most

favorable to the prosecution, a rational trier of fact could have reasonably inferred

the unlawfulness of the threat communicated by Dahms to constitute coercion in

violation of R.C. 2905.12(A). See Jackson at ¶ 51; Zylko at ¶ 42. Therefore, we

conclude that there is sufficient evidence that Dahms intimidated a witness in a

criminal case.

{¶76} Having concluded that Dahms’s bribery and intimidation-of-a-

witness-in-a-criminal-case convictions are based on sufficient evidence, we next

address Dahms’s argument that his bribery, intimidation-of-a-witness-in-a-

criminal-case, breaking-and-entering, and complicity-to-tampering-with-evidence

convictions are against the manifest weight of the evidence. Velez, 2014-Ohio-

1788, at ¶ 76.

{¶77} As an initial matter, we note that Dahms does not make any argument

under his second assignment of error conveying how his bribery and intimidation-

of-a-witness-in-a-criminal-case convictions are against the manifest weight of the

evidence. “[A] defendant has the burden of affirmatively demonstrating the error

of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174,

2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-

2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of

-42-
Case No. 13-16-16

error, it is not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27. “App.R.

12(A)(2) provides that an appellate court ‘may disregard an assignment of error

presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in

the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin

No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,

App.R. 16(A)(7) requires that an appellant’s brief include ‘[a]n argument containing

the contentions of the appellant with respect to each assignment of error presented

for review and the reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which appellant relies.’” Id., quoting

App.R. 16(A)(7). Not only did Dahms fail to include an argument regarding how

his bribery and intimidation-of-a-witness-in-a-criminal-case convictions are against

the manifest weight of the evidence, but Dahms failed to provide citations to the

authorities, statutes, and parts of the record that support his argument.

{¶78} As we noted above, sufficiency of the evidence and manifest weight

of the evidence are different legal concepts. Thompkins, 78 Ohio St.3d at 389. That

Dahms incorporated his “arguments made above [under his sufficiency-of-the-

evidence assignment of error] for the Bribery and Intimidation of a Witness

charges” in his conclusory paragraph under his second assignment of error does not

comport with the requirements of App.R. 12(A)(2) or (16)(A)(7) because

-43-
Case No. 13-16-16

sufficiency of the evidence and manifest weight of the evidence are different legal

concepts, which require different arguments. (See Appellant’s Brief at 23).

{¶79} However, in the interest of justice, we will address the merits of

Dahms’s arguments. See State v. Thomas, 3d Dist. Mercer No. 10-10-17, 2011-

Ohio-4337, ¶ 25. Applying Dahms’s arguments that he makes in support of his

sufficiency-of-the-evidence assignment of error, we conclude that the jury did not

clearly lose its way and create such a manifest miscarriage of justice that Dahms’s

bribery and intimidation-of-a-witness-in-a-criminal-case convictions must be

reversed and a new trial ordered.

{¶80} Indeed, the evidence that we summarized in our sufficiency-of-the-

evidence analyses supporting Dahms’s bribery and intimidation-of-a-witness-in-a-

criminal-case convictions is weightier than the evidence against those convictions.

First, regarding Dahms’s bribery conviction, despite the evidence that Dahms relies

on in support of his sufficiency-of-the-evidence argument, the evidence that he

committed bribery outweighs any evidence that he did not commit that crime. In

his sufficiency-of-the-evidence argument, Dahms points to the evidence that: (1)

Thornton would not lie for Dahms; (2) Dahms did not ask Thornton to lie for him;

and (3) Dahms was merely promising to repay a loan made to him by Thornton

when he promised to pay her $500 for her son’s birthday. However, that evidence

does not outweigh the evidence that Dahms intended to corrupt Thornton.

-44-
Case No. 13-16-16

{¶81} The evidence of Dahms manipulating or coaching Thornton to provide

law enforcement with Dahms’s version of the truth overwhelmingly supports

Dahms’s intent to persuade Thornton to shade or color her testimony in a way that

would benefit Dahms. There is ample evidence in the record that Thornton is

susceptible to manipulation and has difficulty recalling events—traits that Dahms

was aware of and exploited. Further, because we concluded that the promise to

repay a loan constitutes the promise of a valuable thing or benefit under R.C.

2921.02(C), that Dahms was merely promising Thornton to repay her money that

she loaned him does not weigh against his conviction; rather, it weighs in favor of

conviction. Therefore, we conclude that Dahms’s bribery conviction under R.C.

2921.02(C) is not against the manifest weight of the evidence.

{¶82} Second, Dahms’s intimidation-of-a-witness-in-a-criminal-case

conviction is not against the manifest weight of the evidence. In his sufficiency-of-

the-evidence argument, Dahms points to evidence that: (1) Thornton did not witness

the Subway restaurant break-in; and (2) Dahms did not make “any threat of harm or

calumny against Thornton.” (Appellant’s Brief at 20). Although Thornton did not

witness the Subway restaurant break-in, Dahms alleges that Thornton is his alibi

witness for the time at which the Subway restaurant break-in occurred. Stated

differently, Dahms alleges that Thornton witnessed that Dahms did not commit the

Subway restaurant break-in. As such, because Dahms alleges that Thornton is his

-45-
Case No. 13-16-16

alibi witness, Thornton is a witness under R.C. 2921.04(B)—a fact which weighs in

favor of conviction.

{¶83} Moreover, the evidence that we summarized in our sufficiency-of-the-

evidence analysis supporting that Dahms made an unlawful threat is weightier than

Dahms’s contention that he did not threaten Thornton. Dahms erroneously contends

that the evidence that he did not unlawfully threaten Thornton outweighs the

evidence that he unlawfully threatened Thornton because “reporting Thornton to

[the Housing Authority] would have been a truthful statement” since “[t]here is

evidence to show that [Dahms] was, in fact, living with Thornton for some time.”

(Appellant’s Brief at 20). Dahms ignores that his threat to cause a report to be made

regarding Thornton to the Housing Authority—regardless of its truth—amounted to

coercion. Indeed, the evidence that Dahms coerced Thornton is overwhelming. Not

only did Dahms include in a letter to Thornton his threat that a report would be made

to Housing Authority against Thornton, the State presented evidence that Thornton

felt threatened by Dahms to the extent that she blocked him from being able to call

her. Further, the State presented evidence that Dahms threatened possible

consequences if Thornton did not provide law enforcement with a statement,

including that (1) Dahms would be charged with a crime; (2) Thornton would have

to appear in court “five times”; and (3) Thornton would be arrested if she did not

appear, especially because she does not have transportation to court. For these

-46-
Case No. 13-16-16

reasons, we conclude that Dahms’s intimidation-of-a-witness-in-a-criminal-case

conviction is not against the manifest weight of the evidence.

{¶84} Moving to Dahms’s argument that his breaking-and-entering and

attempted-complicity-to-tampering-with-evidence convictions are against the

manifest weight of the evidence, we conclude that, “[e]ven removing the lens of

favorability in favor of the prosecution, through which we examine the sufficiency

of the evidence, this is not an exceptional case where the evidence weighs heavily

against the convictions.” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-

Ohio-222, ¶ 33.

{¶85} R.C. 2911.13 sets forth the offense of breaking and entering and

provides, in relevant part, “(A) 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). Dahms does not dispute the evidence concerning the underlying

elements of the breaking-and-entering offense of which he was convicted; rather, he

disputes the issue of identity as to the conviction. See State v. Missler, 3d Dist.

Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 13. As such, we will address only the

identity element of the offense. Id., citing State v. Carter, 2d Dist. Montgomery No.

25447, 2013-Ohio-3754, ¶ 9-12. “‘It is well settled that in order to support a

conviction, the evidence must establish beyond a reasonable doubt the identity of

-47-
Case No. 13-16-16

the defendant as the person who actually committed the crime at issue.’” Id.,

quoting State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27,

citing State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19, and

State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11.

{¶86} On appeal, Dahms argues that his breaking-and-entering conviction is

against the manifest weight of the evidence because there is no “direct physical

evidence” linking Dahms to the Subway restaurant break-in, and the jury lost its

way in believing the testimony of Kira, Evans, and Perrin over Dahms’s assertion

that Yonikuss was the person who committed the crime. (Appellant’s Brief at 21-

22).

{¶87} There is limited direct evidence linking Dahms to the Subway

restaurant break-in—namely, the surveillance video. (See State’s Ex. 17). While

the person seen in the surveillance video is unidentifiable, Detective Frankart

testified that Dahms matches the build of the person seen in that video. The

surveillance video was played for the jury, and the jury was able to observe Dahms

in the courtroom.

{¶88} Dahms contends that Yonikuss—who allegedly looks similar to

Dahms—committed the Subway restaurant break-in. However, Dahms’s self-

serving contention that Yonikuss is the perpetrator of the break-in is outweighed by

the evidence revealed by Detective Frankart’s investigation that: (1) Yonikuss was

-48-
Case No. 13-16-16

evading law enforcement because there was a warrant for his arrest; (2) Yonikuss

allegedly went to Wyoming prior to the break-in; (3) Dahms had motive to blame

Yonikuss after Yonikuss blamed Dahms for a prior theft; (4) Dahms did not allege

that Yonikuss is the perpetrator to anyone else; and (5) Dahms was the only person

to allege that Yonikuss is the perpetrator.

{¶89} Dahms further argues that the State’s theory of the case is belied by

the evidence that he did not have transportation from Findlay—where he was

allegedly staying with Thornton—to Fostoria, which is a 15-20 minute drive from

Findlay, to commit the Subway restaurant break-in. Aside from Dahms’s self-

serving version of events, Thornton is the only witness to allege to have seen Dahms

in Findlay the night of the break-in. While Thornton claimed that she saw Dahms

before she went to sleep between 10:00 p.m. and 1:00 a.m. on April 20 and right as

she woke up around 7:50 a.m. on April 21, 2015, the State presented evidence that

Thornton suffered several strokes and had difficulty remembering events. Likewise,

the State presented evidence that Thornton was easily manipulated and that Dahms

regarded Thornton as “retarded.” The jury was free to disbelieve Thornton’s

testimony, especially in light of the testimony of the other witnesses who said they

saw Dahms in Fostoria shortly after the Subway restaurant break-in, confessing to

the break-in. Moreover, at one point, Dahms asserted to Detective Frankart that he

was with Thompson and Jade at Thornton’s house the night of the break-in;

-49-
Case No. 13-16-16

however, Dahms did not offer a statement or the testimony of Thompson or Jade.

Nevertheless, the jury heard Detective Frankart’s interview of Thompson, who

could not be sure of what night she was with Dahms because she was intoxicated.

{¶90} Dahms also contends that the testimony of Kira, Evans, and Perrin is

unbelievable compared to Dahms’s version of events. Indeed, Dahms points to

weaknesses in Kira’s, Evans’s, and Perrin’s testimony, which Dahms argues

undermines their credibility. Dahms argues that the jury lost its way in concluding

that he was the person who committed the Subway restaurant break-in because

Kira’s testimony is not credible because she “was shown to be willing to lie just to

get [Dahms] in trouble.” (Appellant’s Brief at 21).

{¶91} However, the jury heard Detective Frankart’s testimony in which he

concluded Kira to be credible in her report that Dahms was the person who

committed the Subway restaurant break-in because Kira knew specific facts

regarding the break-in that were not available to the public, her story was consistent,

and she voluntarily called him to correct her statement when she realized that she

provided an incorrect date of when the break-in occurred. Moreover, Dahms’s

theory that Kira had a motive to lie because she was angry with him for ending their

relationship, and because she has a history of reporting Dahms to law enforcement

when she was angry with him, is belied by the evidence that Kira could have

-50-
Case No. 13-16-16

reported Dahms to law enforcement for the injuries she sustained when Dahms drug

her with his vehicle.

{¶92} Further, Dahms argues that Kira’s credibility is undermined by the

lack of evidence in Kira’s phone that Dahms called her a “snitch” as she reported to

law enforcement. However, the jury heard Kira’s recorded statement in which she

recalled that she could not remember whether Dahms called her a “snitch” through

text message or by phone conversation, but that she was adamant that Dahms called

her a snitch, and she testified to the same. The jury was free to infer whether Kira

was lying about the Subway restaurant break-in or revealing the truth.

{¶93} Moreover, Kady, Andy, Evans, and Perrin provided consistent

accounts to that of Kira’s linking Dahms to the break-in throughout Detective

Frankart’s investigation, and Kady, Evans, and Perrin testified to the same. Indeed,

Kira, Kady, Andy, and Evans indicated that they saw Dahms after the break-in and

that Dahms confessed to them to committing the break-in. Evans further indicated

that Dahms suggested to him prior to the break-in that he was going to “hit a lick,”

or steal money, later that day and asked him to join him. That Evans declined

Dahms’s offer is supported by the video surveillance, which depicts only one

perpetrator. Similarly, Perrin testified that Dahms admitted to him multiple times

that he committed the break-in. The jury was free to believe or disbelieve their

testimony.

-51-
Case No. 13-16-16

{¶94} Collectively, the State’s witnesses testified that Dahms was the person

who committed the break-in. While there were some issues with those witnesses’

credibility, “‘[t]he jury, as the trier of facts, “may believe or disbelieve any witness

or accept part of what a witness says and reject the rest.”’” Missler, 2015-Ohio-

1076, at ¶ 44, quoting State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-Ohio-

2128, ¶ 68, quoting State v. Antill, 176 Ohio St. 61, 67 (1964). “‘“A verdict is not

against the manifest weight of the evidence because the [jury] chose to believe the

State’s witnesses rather than the defendant’s version of the events.”’” Id., quoting

State v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15, quoting State v.

Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. In sum, Dahms’s

arguments concerning the evidence that he is not the person who committed the

Subway restaurant break-in are unpersuasive, especially compared to the weighty

evidence against him discussed above. As such, Dahms’s breaking-and-entering

conviction is not against the manifest weight of the evidence.

{¶95} Finally, Dahms’s attempted-complicity-to-tampering-with-evidence

conviction is not against the manifest weight of the evidence. R.C. 2921.12 sets

forth the offense of tampering with evidence and provides, in relevant part:

(A) No person, knowing that an official proceeding or investigation

is in progress, or is about to be or likely to be instituted, shall do any

of the following:

-52-
Case No. 13-16-16

(1) Alter, destroy, conceal, or remove any record, document, or

thing, with purpose to impair its value or availability as evidence in

such proceeding or investigation;

R.C. 2921.12(A)(1). R.C. 2923.02, Ohio’s attempt-crime statute, provides, in

relevant part, “(A) No person, purposely or knowingly, and when purpose or

knowledge is sufficient culpability for the commission of an offense, shall engage

in conduct that, if successful, would constitute or result in the offense.” R.C.

2923.02(A). R.C. 2923.03 sets for the offense of complicity and provides, in

relevant part, “(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following: (1) Solicit or procure

another to commit the offense.” R.C. 2923.03(A)(1).

{¶96} Dahms does not point to any evidence that weighs against his

attempted-complicity-to-tampering-with-evidence conviction. Dahms’s letters and

the recordings of Dahms’s phone calls speak for themselves. The jury was able to

hear Dahms instruct multiple witnesses to discard potential evidence. Indeed,

Dahms can be heard instructing Evans to dispose of “trash,” which Evans stated

meant that Dahms wanted him to dispose of the hooded sweatshirt and the safe box.

Likewise, Dahms can be heard instructing Thornton to dispose of the letters in

which he bribed her to provide law enforcement with an alibi. For these reasons,

we reject Dahms’s argument.

-53-
Case No. 13-16-16

{¶97} Dahms’s first and second assignments of error are overruled.

Assignment of error No. III

Appellant received Ineffective Assistance of Trial Counsel.

{¶98} In his third assignment of error, Dahms argues that his trial counsel

was ineffective. In particular, he argues that his trial counsel was ineffective for

failing to assert that his right to a speedy trial was violated.

{¶99} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment. Strickland at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42

-54-
Case No. 13-16-16

(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on

other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).

{¶100} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142

and citing Strickland at 694.

{¶101} “When a claim of ineffective assistance of counsel is based on

counsel’s failure to file a particular motion, a defendant must show that the motion

had a reasonable probability of success.” State v. Ferguson, 10th Dist. Franklin No.

16AP-307, 2016-Ohio-8537, ¶ 11, citing State v. Carmon, 10th Dist. Franklin No.

11AP-818, 2012-Ohio-1615, ¶ 9 and State v. Barbour, 10th Dist. Franklin No.

07AP-841, 2008-Ohio-2291, ¶ 32, citing State v. Adkins, 161 Ohio App.3d 114,

2005-Ohio-2577 (4th Dist.). Here, Dahms’s ineffective-assistance-of-counsel claim

centers on his trial counsel’s failure to file a motion to dismiss based on an alleged

violation of his right to a speedy trial. See State v. Matland, 7th Dist. Mahoning No.

09-MA-115, 2010-Ohio-6585, ¶ 15. As such, an analysis of Dahms’s third

assignment of error necessitates a review of the law pertaining to speedy-trial rights.

Id.

-55-
Case No. 13-16-16

{¶102} “An accused is guaranteed the constitutional right to a speedy trial

pursuant to the Sixth and Fourteenth Amendments of the United States Constitution

and Ohio Constitution, Article I, Section 10.” Ferguson at ¶ 12, citing State v.

Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 32. “Ohio’s speedy trial statutes,

found in R.C. 2945.71 et seq., were implemented to enforce those constitutional

guarantees.” Id., citing Brecksville v. Cook, 75 Ohio St.3d 53, 55 (1996) and State

v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, ¶ 10. “The proper standard of

review in speedy trial cases is to simply count the number of days passed, while

determining to which party the time is chargeable, as directed in R.C. 2945.71 and

2945.72.” Id., citing State v. Jackson, 10th Dist. No. 02AP-468, 2003-Ohio-1653,

¶ 32, citing State v. DePue, 96 Ohio App.3d 513, 516 (4th Dist.1994).

{¶103} “R.C. 2945.71 provides the timeframe for a defendant’s right to a

speedy trial based on the level of offense.” Matland at ¶ 19. “[A] person against

whom a charge of felony is pending shall be brought to trial within two hundred

seventy days after his arrest.” R.C. 2945.71(C)(2). “The date of the arrest is not

included for the purpose of calculating time under the statutes for a speedy trial.”

State v. Taylor, 3d Dist. Allen No. 1-13-46, 2014-Ohio-1793, ¶ 27, citing State v.

Huston, 3d Dist. Wyandot Nos. 16-05-23 and 16-05-24, 2006-Ohio-6857, ¶ 7.

{¶104} “However, each day the defendant spends in jail solely on the

pending criminal charge counts as three days.” Matland at ¶ 19, citing R.C.

-56-
Case No. 13-16-16

2945.71(E). “For purposes of this calculation, the Tenth District Court of Appeals

has clarified, ‘where more than one charge has arisen from a single transaction and

the multiple charges share a common litigation history from arrest onward,

incarceration on the multiple charges will be considered incarceration on the

‘pending charge’ for purposes of [R.C.] 2945.71(E).’” Id., quoting State v. Madden,

10th Dist. Franklin No. 04AP-1228, 2005-Ohio-4281, ¶ 29-30, citing State v.

Parsley, 82 Ohio App.3d 567, 571, (10th Dist.1993). A defendant cannot benefit

from the “triple-count provision” under R.C. 2945.71(E) when he or she is being

held in jail on other charges. State v. Stephens, 9th Dist. Summit No. 26516, 2013-

Ohio-2223, ¶ 12, citing State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009-

Ohio-3924, ¶ 11, citing State v. MacDonald, 48 Ohio St.2d 66 (1976), paragraph

one of the syllabus. See also State v. Brown, 64 Ohio St.3d 476, 479-480 (1992).

“Instead, the 270-day time limit contained in R.C. 2945.71(C)(2) applies.” Stephens

at ¶ 12, citing State v. Richter, 9th Dist. Summit No. C.A. NO. 11799, 1985 WL

10977 (Feb. 13, 1985) and MacDonald at 71.

{¶105} “R.C. 2945.72 allows for an extension of the time that the accused

must be brought to trial under certain circumstances.” Taylor at ¶ 28. Excluded

from the speedy trial calculation is “[a]ny period of delay necessitated by reason of

a plea in bar or abatement, motion, proceeding, or action made or instituted by the

accused.” R.C. 2945.72(E). Also excluded from the speedy-trial calculation is

-57-
Case No. 13-16-16

“[t]he 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.” R.C. 2945.72(H).

{¶106} In this case, Dahms’s trial counsel was not ineffective for failing to

file a motion to dismiss alleging a violation of Dahms’s speedy-trial rights because

Dahms cannot demonstrate that the motion would have had a reasonable probability

of success. See Matland at ¶ 50 (concluding that Matland’s trial counsel was not

ineffective for failing to file a motion to dismiss based on an alleged violation of his

right to a speedy trial because that motion “would have failed unequivocally”).

{¶107} The speedy-trial clock began to run on August 7, 2015—the day after

which Dahms was arrested in this case—and ran for 56 days before speedy-trial

time was tolled as a result of multiple motions filed by Dahms delaying his trial.

(See Doc. Nos. 4, 22, 23, 26, 34, 35, 36, 37, 39, 43, 44, 45, 47, 50, 51, 52, 53, 56).4

4
Dahms was already in jail for other offenses when he was “arrested” on August 6, 2015 for the charges
underlying this case. (Doc. No. 4). As such, the speedy-trial clock began on August 7, 2015. Dahms filed
a motion on October 2, 2016 causing the speedy-trial clock to toll for the time necessary to adjudicate that
motion. (Doc. No. 22); R.C. 2945.72(E). However, before that motion could be adjudicated, Dahms
withdrew that motion on October 13, 2015. (Doc. No. 34). That same day, Dahms filed a motion to continue
trial, which the trial court granted and rescheduled trial for December 15-16, 2015. (Doc. Nos. 35, 37, 39).
See also R.C. 2945.72(H). On November 24, 2015, Dahms filed another motion tolling the speedy-trial clock
for the time necessary to adjudicate that motion. (Doc. No. 43); R.C. 2945.72(E). To adjudicate that motion,
the trial court held a hearing on December 4, 2015 in which the trial court granted Dahms’s motion and
scheduled an evidentiary hearing for December 17, 2015. (Doc. Nos. 51, 52). On November 30, 2015,
Dahms filed a third motion tolling the speedy-trial clock for the time necessary to adjudicate that motion.
(Doc. No. 44); R.C. 2945.72(E). Also, on November 30, 2015, Dahms filed a second motion to continue
trial, which the trial court granted. (Doc. Nos. 45, 47). After a hearing on December 4, 2015, the trial court
denied Dahms’s third motion on December 9, 2015. (Doc. Nos. 50, 53). After the December 17, 2015
evidentiary hearing, the trial court on December 22, 2015 rescheduled trial for April 26-28, 2016. (Doc. No.
56). See also R.C. 2945.72(H).

-58-
Case No. 13-16-16

Indeed, Dahms filed three motions tolling the speedy-trial clock for the time

necessary to adjudicate those motions—the last being timely disposed of on

December 22, 2015 after a December 17, 2015 evidentiary hearing. As such, at that

time, the only remaining matter was to reschedule Dahms’s trial as a result of

Dahms’s November 30, 2015 motion to continue trial, which was granted by the

trial court. The trial court rescheduled Dahms’s trial for April 26-28, 2016 in its

December 22, 2015 entry. “[I]t is well-established that a defense motion to continue

trial tolls the speedy trial clock until the rescheduled trial date.” State v. Caulton,

7th Dist. Mahoning No. 09 MA 140, 2011-Ohio-6636, ¶ 33, citing R.C. 2945.72(H)

and State v. Brown, 7th Dist. Mahoning No. 03 MA 32, 2005-Ohio-2939, ¶ 41. See

also State v. Quinnie, 10th Dist. Franklin No. 12AP-484, 2013-Ohio-1208, ¶ 8.

Accordingly, the speedy-trial clock was tolled until the rescheduled trial date.

{¶108} Thus, even if we assume without deciding that Dahms benefitted

from the “triple-count provision” under R.C. 2945.71(E), Dahms was brought to

trial well-within 90 days because the speedy-trial clock ran only 56 days. Therefore,

Dahms cannot demonstrate that a motion to dismiss alleging a speedy-trial rights

violation would have had a reasonable probability of success. Because Dahms

cannot demonstrate that a motion to dismiss alleging a speedy-trial rights violation

would have had a reasonable probability of success, Dahms’s ineffective assistance

-59-
Case No. 13-16-16

of counsel claim fails. See State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-

Ohio-4183, ¶ 34.

{¶109} Dahms’s third assignment of error is overruled.

Assignment of Error No. IV

Appellant’s right to due process was violated as the State failed to
disclose exculpatory evidence it had in its possession.

{¶110} In his fourth assignment of error, Dahms argues that he was denied

due process of law because the State failed to disclose 181 jailhouse calls. It appears

that Dahms is arguing that the State’s failure to disclose those jailhouse calls

amounted to a “Brady violation.”

{¶111} “‘[S]uppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.’” State

v. Davis, 116 Ohio St.3d, 2008-Ohio-2, ¶ 338, quoting Brady v. Maryland, 373 U.S.

83, 87, 83 S.Ct. 1194 (1963). However, the United States Supreme Court later

clarified, “‘The rule of Brady * * * arguably applies in three quite different

situations. Each involves the discovery, after trial, of information which had been

known to the prosecution but unknown to the defense.’” (Emphasis added.) State

v. Wickline, 50 Ohio St.3d 114, 116 (1990), quoting United States v. Agurs, 427

U.S. 97, 103, 96 S.Ct. 2392 (1976).

-60-
Case No. 13-16-16

{¶112} As an initial matter, Dahms’s reliance on Brady is misplaced because

Brady involves the discovery of evidence after trial. See State v. Jackson, 10th Dist.

Franklin No. 02AP-867, 2003-Ohio-6183, ¶ 24. Based on the United States

Supreme Court’s clarification regarding the scope of Brady, the Supreme Court of

Ohio concluded that “no Brady violation occurs when evidence is discovered and

presented during the trial.” State v. Wilson, 3d Dist. Union No. 14-13-04, 2013-

Ohio-4643, ¶ 22, citing Wickline at 116. Dahms concedes that he received the

jailhouse phone calls prior to the start of trial. (See Appellant’s Brief at 26). (See

also Apr. 26, 2016 Tr., Vol. I, at 111). As such, no Brady violation exists. See State

v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, ¶ 82.

{¶113} Nonetheless, Dahms argues that the trial court erred when it denied

his oral motion to continue trial for the purpose of investigating whether the State

withheld exculpatory evidence. “When a defendant discovers that the State

withheld potentially exculpatory evidence during the course of the trial proceedings,

and not after, Crim.R. 16(L), and not Brady, governs.” Wilson at ¶ 22, citing

Wickline at 116-117.5 Crim.R. 16(L) provides, in relevant part:

The trial court may make orders regulating discovery not inconsistent

with this rule. If at any time during the course of the proceedings it is

5
When the Supreme Court of Ohio issued its decision in State v. Wickline, “the applicable Rule of Criminal
Procedure governing discovery sanctions was Crim.R. 16(E)(1).” State v. Wilson, 3rd Dist. Union No. 14-
13-04, 2013-Ohio-4643, ¶ 22, fn.1. “However, Rule 16 of the Rules of Criminal Procedure was subsequently
amended on July 1, 2010, and the current section governing discovery sanctions is Crim.R. 16(L)(1).” Id.

-61-
Case No. 13-16-16

brought to the attention of the court that a party has failed to comply

with this rule * * *, the court may order such party to permit the

discovery or inspection, grant a continuance, or prohibit the party

from introducing in evidence the material not disclosed, or it may

make such other order as it deems just under the circumstances.

Crim.R. 16(L)(1).

{¶114} “‘The trial court has discretion to regulate discovery in a manner

consistent with Crim.R. 16.’” State v. Mobley, 2d Dist. Montgomery No. 26858,

2016-Ohio-4579, ¶ 23. As such, we review a trial court’s response to allegations of

noncompliance with the criminal-discovery rules under an abuse-of-discretion

standard. See State v. Wilson, 192 Ohio App.3d 189, 2011-Ohio-155, ¶ 54 (11th

Dist.), citing Crim.R. 16(L)(1), State v. Wiles, 59 Ohio St.3d 71, 78 (1991), State v.

Parson, 6 Ohio St.3d 442, 445 (1983), and State v. Edwards, 49 Ohio St.2d 31, 42

(1976). See also State v. Adams, 7th Dist. Mahoning No. 00 CA 211, 2006-Ohio-

1761, ¶ 40, citing Parson at 445.

{¶115} It appears that Dahms is arguing that the trial court abused its

discretion by denying his motion to continue trial because that penalty “would have

been the least restrictive means to correct the non-disclosure.” (Appellant’s Brief

at 26). When determining whether to impose a discovery-rule sanction, “‘[a] trail

court must inquire into the circumstances surrounding a discovery rule violation and

-62-
Case No. 13-16-16

* * * must impose the least severe sanction that is consistent with the purpose of the

rules of discovery.’” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,

syllabus, quoting Lakewood v. Papadelis, 32 Ohio St.3d 1 (1987), paragraph two of

the syllabus. The Supreme Court of Ohio identified three factors that a trial court

should consider when a discovery violation is alleged: “(1) whether the failure to

disclose was a willful violation of Crim.R. 16; (2) whether foreknowledge of the

undisclosed material would have benefitted the accused in the preparation of a

defense; and (3) whether the accused was prejudiced.” Id. at ¶ 35, citing Parson at

syllabus.

{¶116} In this case, the trial court inquired into the circumstances

surrounding the alleged Crim.R. 16 violation as it is required to do. See State v.

Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 11(“‘[A] trial court must

inquire into the circumstances producing [an] alleged violation of Crim.R. 16.’”),

quoting State v. Bellomy, 9th Dist. Wayne No. 97CA0036, 1998 WL 161292, *2

(Apr. 8, 1998). Dahms’s trial counsel represented to the trial court that he

“receive[d] a disc from the sheriff’s department that contains possibly hundreds and

hundreds of audio files * * * never heard.” (Apr. 26, 2016 Tr., Vol. I, at 111). He

continued, “I found a reference in the audio [which was provided by the State] after

examining many, many hours * * * of audio of my client that referred to I think nine

other phone calls. So I asked my client about nine other phone calls, and that’s

-63-
Case No. 13-16-16

when he started telling me there’s many, many other calls that we’ve never heard

and that were never produced to me.” (Id. at 112). In response, the State indicated

that it “provided all of the calls that [it] deem[ed] relevant that [it] intend[s] to use”

because “there are hundreds of phone calls, and [the State] do[es] not have the

resources to listen to every single phone call made from jail on every single one of

[its] cases.” (Id. at 114-115). The State added that

this case has been ongoing since August of 2015. We actually

prepared for trial, it as originally set for trial, in October of 2015. Had

[Dahms’s trial counsel] requested [the State] certainly would have

done so.

However, he waited until the night before trial to request all of these.

(Id. at 115). Ultimately, Dahms’s trial counsel requested that the trial court “pause

the trial and come back and resume it” or in the alternative to sanction the State by

preventing it “from putting on any evidence related to this audio or testimony that

could be in the audio.” (Id. at 119). The trial court agreed that the appropriate

sanction is to prevent the State from using “anything that hasn’t been provided in

discovery.” (Id. at 120). As such, the trial court denied Dahms’s motion to continue

trial. (See id. at 121).

{¶117} Even if we assume without deciding that the jailhouse phone calls are

properly discoverable evidence, the trial court did not abuse its discretion by

-64-
Case No. 13-16-16

imposing the discovery-rule-violation sanction prohibiting the State from using any

evidence that may be contained in the jailhouse calls. First, we note that Dahms

requested that the trial court either continue trial or prohibit the State from using the

jailhouse calls not provided through discovery as evidence. That Dahms now

complains on appeal that the trial court selected from Dahms’s proposed remedies

is invited error. See State v. Cunigan, 195 Ohio App.3d 162, 2011-Ohio-4010, ¶ 12

(2d Dist.), citing Daimler/Chrysler Truck Fin. v. Kimball, 2d Dist. Champaign No.

2007-CA-07, 2007-Ohio-6678, ¶ 40, citing 5 Ohio Jurisprudence 3d, Appellate

Review, Section 448, at 170-171 (1999, Supp.2007). “‘The “invited error doctrine”

holds that a party will not be permitted to take advantage of an error which he

himself invited or induced the court to make.’” State v. Arnold, 3d Dist. Seneca No.

13-16-13, 2017-Ohio-326, ¶ 12, quoting State v. Ritch, 4th Dist. Scioto No.

97CA2491, *4 (May 11, 1998), citing State ex rel. O’Berine v. Geauga Cty. Bd. of

Elections, 80 Ohio St.3d 176, 181 (1997) and State ex rel. Bitter v. Missig, 72 Ohio

St.3d 249, 254 (1995). See also State v. Monnette, 3d Dist. Marion No. 9-08-33,

2009-Ohio-1653, ¶ 12, citing State v. Ransom, 3d Dist. Van Wert No. 15-06-05,

2006-Ohio-6490, ¶ 14.

{¶118} Nevertheless, the trial court did not abuse its discretion by denying

Dahms’s motion to continue trial. As with its regulation of discovery under Crim.R.

16, “[t]he trial court has broad discretion to grant or deny a motion for a

-65-
Case No. 13-16-16

continuance.” State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366,

¶ 38, citing State v. Bones, 2d Dist. Montgomery No. 26017, 2015-Ohio-784, ¶ 61.

“In exercising its discretion, a trial court should consider ‘the length of the delay

requested; whether other continuances have been requested and received; the

inconvenience to litigants, witnesses, opposing counsel and the court; whether the

requested delay is for legitimate reasons or whether it is dilatory, purposeful, or

contrived; whether the defendant contributed to the circumstance which give [sic]

rise to the request for a continuance; and other relevant factors, depending on the

unique facts of each case.’” Id., quoting State v. Bocock, 2d Dist. Montgomery No.

22481, 2008-Ohio-5641, ¶ 23.

{¶119} As we previously noted, Dahms was granted two continuances in this

case. The State informed the trial court that Dahms’s trial counsel had in his

possession in August 2015 the audio tapes from which Dahms’s trial counsel

claimed to have learned of the existence of the other jailhouse calls. Yet, Dahms’s

trial counsel waited until April 2016—just before trial—to review those recordings.

Likewise, Dahms’s trial counsel revealed that he learned from Dahms of the

additional calls just prior to the commencement of trial—a conversation that could

have occurred in the months leading up to trial. It is also unclear why Dahms did

not reveal to his trial counsel the existence of those jailhouse calls—or whether there

is potentially exculpatory evidence contained in those calls—prior to the time his

-66-
Case No. 13-16-16

trial was to commence. Accordingly, we conclude that the trial court did not abuse

its discretion by denying Dahms’s motion to continue trial. See Bressi, 2016-Ohio-

5211, at ¶ 23 (concluding that the trial court did not abuse its discretion by denying

Bressi’s motion to continue trial because “he waited until the afternoon before his

rescheduled trial date to bring the issue of the recordings to the court’s attention”

and “[i]t is pure speculation that any additional questioning of the witnesses would

have caused [the State’s witness] to change his testimony”).

{¶120} Therefore, we conclude that the trial court did not abuse its discretion

by preventing the State from using the jailhouse calls not provided through

discovery as evidence—that is, imposing the least severe sanction that it determined

to be consistent with the purpose of the rules of discovery.

{¶121} Dahms’s fourth assignment of error is overruled.

Assignment of Error No. V

The Trial Court erred in ordering Appellant to serve a mandatory
term of Post-Release Control.

{¶122} In his fifth assignment of error, Dahms argues that the trial court

erred by ordering him to serve a mandatory period of post-release control. More

specifically, Dahms argues that the trial court erred by imposing a mandatory three-

year period of post-release control as to his bribery and intimidation-of-a-witness-

in-a-criminal-case convictions because those offenses are not offenses of violence.

-67-
Case No. 13-16-16

{¶123} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

{¶124} Ohio’s post-release control statute is codified under R.C. 2967.28.

R.C. 2967.28 “defines whether a term of post-release control is mandatory or

discretionary with the parole board and sets forth the length of the term, depending

on the degree of felony and whether the offense is a felony sex offense.” State v.

Threats, 7th Dist. Jefferson No. 15JE0005, 2016-Ohio-8478, ¶ 16, citing R.C.

2967.28(B), (C). “For instance, post-release control is mandatory when a prison

term is imposed for a felony of the first degree, a felony of the second degree, a

felony sex offense, or a felony of the third degree that is an offense of violence.”

Id., citing. R.C. 2967.28(B). “For a felony of the first degree or for a felony sex

offense, the term of post-release control must be five years.” Id., citing R.C.

2967.28(B)(1). “Unless the offense is a felony sex offense, the term of post-release

-68-
Case No. 13-16-16

control is a mandatory three years for a second degree felony or third degree felony

offense of violence.” Id., citing R.C. 2967.28(B)(2).

{¶125} “If a prison sentence is imposed for a felony of the third degree that

is not a felony sex offense and is not an offense of violence, then the parole board

has the discretion to impose post-release control for ‘up to three years.’” Id. at ¶ 17,

citing R.C. 2967.28(C).

{¶126} Dahms challenges the trial court’s imposition of a mandatory three-

year period of post-release control as to his bribery and intimidation-of-a-witness-

in-a-criminal-case convictions. The State concedes that the trial court erred by

ordering Dahms to serve a mandatory three-year term of post-release control as to

his bribery conviction. We agree. Dahms was convicted of bribery under R.C.

2921.02(C), a third-degree felony. Bribery under R.C. 2921.02(C) is not a felony

sex offense or an offense of violence. See R.C. 2901.01(A)(9) (defining offense of

violence).

{¶127} However, we reject Dahms’s argument regarding his intimidation-

of-a-witness-in-a-criminal-case conviction under R.C. 2921.04(B)(2).

Intimidation-of-a-witness-in-a-criminal-case conviction under R.C. 2921.04(B)(2)

is an offense of violence. See R.C. 2901.01(A) (including violations of R.C.

2921.04 in the definition of “offense of violence”). Therefore, the trial court

-69-
Case No. 13-16-16

properly imposed the mandatory three-year period of post-release control as part of

Dahms’s sentence as to his intimidation-of-a-witness-in-a-criminal-case conviction.

{¶128} Dahms’ fifth assignment of error is overruled in part and sustained in

part.

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

particulars assigned and argued in assignments of error one, two, three, four, and

five, in part, we affirm the judgment of the trial court. Having found error

prejudicial to the appellant herein in the particulars assigned and argued in

assignment of error five, in part, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded

SHAW, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.

/jlr

-70-