[Cite as State v. Neff, 2021-Ohio-3766.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-20-004
Appellee Trial Court No. 2018-CRI-295
v.
Rosco G. Neff DECISION AND JUDGMENT
Appellant Decided: October 22, 2021
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.
Kimberly Kendall Corral, Megan Patituce, and
Mallorie Thomas, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Ottawa County Court of Common
Pleas, which sentenced appellant to a total prison term of 25 years after a jury convicted
him of 27 of 44 felony and misdemeanor offenses. For the reasons set forth below, this
court affirms the judgment of the trial court.
I. Background
{¶ 2} This appeal originated from 49 felony and misdemeanor theft ring
indictments against appellant Rosco G. Neff issued on December 6, 2018, by an Ottawa
County Grand Jury that resulted in two jury mistrials, one completed jury trial, guilty
verdicts for 27 offenses, and a prison sentence totaling 25 years.
A. First Jury Mistrial
On the morning of trial, appellee, state of Ohio, dismissed five of the 49 charges.
The first jury trial commenced on July 15, 2019, and appellee presented to the jury four
victim witnesses and four witnesses from law enforcement who investigated the offenses.
The trial court admitted into evidence a lengthy set of stipulations of facts for 38 of the
44 offenses deemed to conclusively establish those facts beyond a reasonable doubt. The
stipulations included disclosures that each of three codefendants from appellant’s alleged
theft ring were required to provide truthful testimony “in all trials relating to all
codefendants” in exchange for individual plea deals. The next day appellant requested,
and the trial court granted, a mistrial because the first codefendant to testify was
hospitalized the previous night after being severely beaten in the Ottawa County
Detention Facility.
B. Second Jury Mistrial
The second jury trial commenced on October 29, 2019, and appellee presented to
the jury 13 witnesses: four victim witnesses, four witnesses from law enforcement who
investigated the offenses, four witnesses who were codefendant informants, and one
2.
additional informant who was not a codefendant. The trial court admitted into evidence
19 state exhibits and the stipulations of facts for 38 offenses. After appellee rested its
case appellant testified in his defense. Appellant testified his lengthy criminal past began
as a juvenile and during this time he preferred to avoid jury trials by seeking the best
possible plea offers. Appellant then falsely testified about an alleged plea offer in this
case. Appellee moved for a mistrial, and over appellant’s objection, the trial court
declared a second mistrial and found appellant in direct contempt for openly and falsely
testifying about plea negotiations. The trial court then dismissed the jury.
{¶ 3} In open court and prior to the trial court declaring the second mistrial,
appellee objected to appellant’s plea offer testimony; appellant’s trial counsel confirmed
he advised his client not to testify about any plea negotiations; and the trial court
instructed the jury “to disregard that answer. I know that is hard to do, but you are
instructed to do so.” Then the trial court held a sidebar discussion outside of the jury’s
hearing. The trial court considered and rejected, after hearing arguments, whether to
make an additional attempt at a curative instruction that “‘Mr. Neff’s testimony about the
two-year offer is, in fact, inaccurate.’” The trial court also considered and rejected, after
hearing further arguments, whether to directly question jurors regarding separating
appellant’s testimony from their deliberations while somehow avoiding making it “a too
big a deal.”
{¶ 4} The sidebar ended, and the jury trial resumed. Appellee moved for a
mistrial, arguing appellant disregarded his attorney’s instruction and referenced
3.
prohibited plea negotiations while also falsely asserting a favorable plea that appellee
never offered. Appellee further argued appellant’s misconduct at trial could not be cured
with a jury instruction and moved for direct contempt of court. In response, appellant’s
trial counsel argued against a mistrial because the jury could disregard the offending
portion of appellant’s testimony stating, “As soon as my client got off the stand, he
apologized. It was not his intention to mislead the jury. He was telling things from his
point of view.”
{¶ 5} After hearing all arguments in open court, the trial court decided, “Well, a
mistrial is going to be the order of the day, and I will find Mr. Neff in direct contempt for
speaking out about pre-trial issues that he should not have spoken of and was warned not
to speak of them and, in fact, did not properly state even what settlement offer was made.
That was inaccurate as well.”
{¶ 6} Sentencing for the contempt offense occurred the next day. In its October
31, 2019 judgment entry, the trial court reviewed the misconduct by appellant from the
second mistrial and stated, “The Court finds beyond a reasonable doubt that this Judge
personally observed the actions constituting Defendants contempt and that summary
action is necessary as Defendant’s actions pose an imminent threat to the administration
of justice.” At the contempt sentencing hearing, appellant stated on his own behalf, “I
didn’t say that in intention to put anything in the jury’s head. My point was to flat get out
that I don’t care what any kind of plea bargain they were trying to give or anything. That
was my point. I felt my innocence was proven, period.” The trial court responded that
4.
what appellant “said about a plea deal was a flat-out fabrication. That is perjury. I take a
very dim view of that.” The trial court explained:
Well, my perspective of it was that you were seeing a trial go very
bad, you were seeing that witnesses were testifying about you in a very
damaging way. I suspect that you saw that you didn’t have much hope.
Your counsel has said that he warned you not to say what you said. You
did it in order to get a mistrial. That is my impression. * * * You have
seen, I think, by the course of that trial the last two, three days that it is
highly likely you are going to be convicted. It is highly likely you are
going to spend a lot of time in prison.
C. Third Jury Trial
{¶ 7} The third jury trial commenced on December 17, 2019, and continued for
three days. Appellee presented to the jury 14 witnesses: four victim witnesses, five
witnesses from law enforcement who investigated the offenses, four witnesses who were
codefendant informants, and one additional informant who was not a codefendant. The
trial court admitted into evidence 18 state exhibits and the stipulations of facts for 38
offenses. After appellee rested its case, appellant moved for acquittal pursuant to
Crim.R. 29(A), which the trial court denied. Appellant testified for his defense, in
addition to a codefendant’s spouse. After jury deliberations, the jury convicted appellant
of the following 27 offenses:
5.
{¶ 8} Count 1, engaging in a pattern of corrupt activity, a violation of R.C.
2923.32(A)(1) and a first-degree felony, R.C. 2923.32(B)(1). There were no stipulations
for Count 1. According to the record, between January 9 and September 15, 2018,
appellant was employed by or associated with an enterprise through a pattern of corrupt
activity. During that period about 20 break-ins and thefts from hunting cabins, boats,
barns and commercial properties occurred in Ottawa, Erie and Sandusky counties.
Appellant, as the leader of the theft ring, coordinated others to engage in the criminal
enterprise, which involved the planning of the break-ins and thefts, the actual break-ins
and thefts, the acquisition of stolen property, the distribution of the stolen items among
the theft ring, and the sale of the stolen items through private sales and flea markets.
{¶ 9} Different combinations of codefendants formed for each theft, and not all
codefendants involved in the theft ring testified at appellant’s trial. In addition, not all
codefendants that testified at appellant’s trial had plea deals.
{¶ 10} Cody Brentgartner testified at trial he was a codefendant with a plea deal.
Mr. Brentgartner conducted all of the break-ins and thefts with different combinations of
codefendants and, on one occasion, with appellant. Mr. Brentgartner also planned the
incidents with appellant’s guidance, such as identifying the victims to target, explaining
methods to evade security measures, or commissioning the type of stolen property to
acquire. Two victims of the theft ring testified at trial. Mr. Brentgartner also disposed of
the stolen items by primarily selling them to appellant who resold them at a substantial
markup. In some instances, Mr. Brentgartner sold stolen items to Ron Royster, who then
6.
resold them at flea markets knowing the items were stolen. Mr. Royster, a co-defendant,
did not testify at appellant’s trial.
{¶ 11} Dakota Siefke and Jonathan Torres were two codefendants with plea deals
and testified at trial. Each participated in some of the break-ins and thefts, and identified
the property stolen and the people, including appellant, involved with those theft ring
incidents. Taylor Gobmeier was a codefendant without a plea deal who participated in
some of the break-ins and thefts as a drop off and getaway driver. Ms. Gobmeier testified
at trial and identified the property stolen and the people, including appellant, involved
with those theft ring incidents. Dava Neff is appellant’s sister-in-law and the mother of
another codefendant, Zachary Neff, who was convicted for his involvement in the theft
ring, but who did not testify at trial. Mrs. Neff testified at appellant’s trial as to what she
heard and saw of appellant’s participation in the theft ring and influence over her son.
{¶ 12} Joseph Leroux, a detective from the Ottawa County Sheriff’s Office,
testified at trial about his investigation of the theft ring. Mr. Brentgartner provided the
initial information about appellant’s involvement as “the leader of the crew * * * [who
would] tell them what to target and where to target.” In the course of Detective Leroux’s
investigation, he uncovered the scope of the theft ring and corroborated Mr.
Brentgartner’s information with witnesses who testified at trial and with witnesses who
did not. Tiffany Soboslay from the Lorain police department, Matt Scheerer from the
Erie County sheriff’s office, John Gangway from the Catawba Island Township police
department, and Joel Scherer from the Ottawa County prosecutor’s office each testified at
7.
trial about their separate investigations of the break-ins and thefts that led to
corroborating evidence of appellant’s theft ring activities.
{¶ 13} Count 2, complicity to breaking and entering, a violation of R.C.
2923.03(A)(1) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F), and Count 3, complicity to theft from person in a protected class, a violation
of R.C. 2923.03(A)(1) of the principle offense of R.C. 2913.02(A)(1) and a fourth-degree
felony, R.C. 2923.03(F), concern the same victim. The parties stipulated that on or about
August 24, 2018, a trespass by force, stealth or deception occurred at night an unoccupied
structure, a boat located at Dock F-14 at Shrock’s Marina in Ottawa County, with the
purpose to commit theft of fishing equipment valued between $1,000 and $7,500 and
without the consent of the owner, Larry Loeckel, who is over 65 years old. The evidence
at trial established that appellant solicited or procured three codefendants to commit the
trespass and theft.
{¶ 14} Count 4 is for complicity to breaking and entering, a violation of R.C.
2923.03(A)(1) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F). The parties stipulated that on or about August 24, 2018, a trespass by force,
stealth or deception occurred at night of an unoccupied structure, a boat owned by Dennis
Bednarski, located at Dock F-11 at Shrock’s Marina in Ottawa County to commit a theft.
The evidence at trial established that appellant solicited or procured the same three
codefendants to commit the trespass.
8.
{¶ 15} Count 5, complicity to breaking and entering, a violation of R.C.
2923.03(A)(1) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F), and Count 6, complicity to theft, a violation of R.C. 2923.03(A)(1) of the
principle offense of R.C. 2913.02(A)(1) and a fifth-degree felony, R.C. 2923.03(F),
concern the same victim. The parties stipulated that on or about August 23, 2018, a
trespass by force, stealth or deception occurred at night of an unoccupied structure, a boat
located at Dock F-12 at Shrock’s Marina in Ottawa County, with the purpose to commit
theft of fishing equipment valued between $1,000 and $7,500 and without the consent of
the owner, Greg Ammons. The evidence at trial established that appellant solicited or
procured the same three codefendants to commit the trespass and theft.
{¶ 16} Count 7, complicity to breaking and entering, a violation of R.C.
2923.03(A)(1) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F), and Count 8, complicity to theft from person in a protected class, a violation
of R.C. 2923.03(A)(1) of the principle offense of R.C. 2913.02(A)(1) and a fourth-degree
felony, R.C. 2923.03(F), concern the same victim. The parties stipulated that on or about
August 24, 2018, a trespass by force, stealth or deception occurred at night of an
unoccupied structure, a boat located at Dock F-10 at Shrock’s Marina in Ottawa County,
with the purpose to commit theft of fishing equipment valued between $1,000 and $7,500
and without the consent of the owner Kevin McCray, who is over 65 years old. The
evidence at trial established that appellant solicited or procured the same three
codefendants to commit the trespass and theft.
9.
{¶ 17} Count 9, complicity to breaking and entering, a violation of R.C.
2923.03(A)(1) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F), and Count 10, complicity to theft from person in a protected class, a violation
of R.C. 2923.03(A)(1) of the principle offense of R.C. 2913.02(A)(1) and a fourth-degree
felony, R.C. 2923.03(F), concern the same victim. The parties stipulated that on or about
August 22 through 27, 2018, a trespass by force, stealth or deception occurred at night of
an unoccupied structure, a boat docked at Shrock’s Marina in Ottawa County, with the
purpose to commit theft of fishing equipment valued between $1,000 and $7,500, and
without the consent of the owner, Robert Tackett, who is over 65 years old. The
evidence at trial established that appellant solicited or procured the same three
codefendants to commit the trespass and theft.
{¶ 18} Count 11, complicity to breaking and entering, a violation of R.C.
2923.03(A)(2) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F), and Count 12, complicity to theft, a violation of R.C. 2923.03(A)(2) of the
principle offense of R.C. 2913.02(A)(1) and a first-degree misdemeanor, R.C. 2923.03(F)
concern the same victim. The parties stipulated that on or about August 19 through 24,
2018, a trespass by force, stealth or deception occurred at night of an unoccupied
structure, a boat located at Dock G-6 at Foxhaven Marina in Ottawa County, with the
purpose to commit a theft of fishing equipment valued under $1,000 and without the
consent of the owner David Vargo. The evidence at trial established that appellant
10.
solicited or procured a different combination of three codefendants to commit the trespass
and theft.
{¶ 19} Count 13, complicity to breaking and entering, a violation of R.C.
2923.03(A)(2) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F) and Count 14, complicity to theft from person in a protected class, a violation
of R.C. 2923.03(A)(2) of the principle offense of R.C. 2913.02(A)(1) and a fourth-degree
felony, R.C. 2923.03(F), concern the same victims. The parties did not stipulate to these
counts. The evidence at trial established that on or about August 20 to 21, 2018,
appellant aided or abetted three codefendants, each with a plea deal, to commit the
offense of breaking and entering at night of an unoccupied structure, a boat owned by
Donald Ralph, who is over 65 years old, at Foxhaven Marina in Ottawa County, and to
commit a theft of eight fishing poles valued between $1,000 and $7,500. Jacob Geiss
testified at trial that he innocently purchased from appellant some of the stolen fishing
poles, and through law enforcement investigations, the identifiable stolen property was
seized and returned to the owner.
{¶ 20} Count 17, complicity to breaking and entering, a violation of R.C.
2923.03(A)(2) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F), and Count 18, complicity to theft, a violation of R.C. 2923.03(A)(2) of the
principle offense of R.C. 2913.02(A)(1) and a fifth-degree felony, R.C. 2923.03(F),
concern the same victim. The parties stipulated that on or about August 18 through
September 15, 2018, a trespass by force, stealth or deception occurred at night of an
11.
unoccupied structure, a boat located at Dock A-12 at Foxhaven Marina in Ottawa
County, with the purpose to commit a theft of fishing equipment valued between $1,000
and $7,500 and without the consent of the owner Jeffrey Martin. The evidence at trial
established that appellant solicited or procured three codefendants to commit the trespass
and theft.
{¶ 21} Count 34, possession of weapons under disability, a violation of R.C.
2923.13(A)(3) and a third-degree felony, R.C. 2923.13(B). The parties stipulated that on
or about June 19, 2018, a 12-guage Beretta shotgun, a 20-gauge Beretta shotgun, and a 9-
milimeter Glock handgun, each in operable condition, were taken from 3500 West
Willow Beach Road, Lot 4, in Ottawa County. The parties further stipulated that
appellant was convicted of a felony-level possession of drugs on March 12, 2004, and has
not been relieved of that R.C. 2923.14 disability. The evidence at trial established that
two codefendants stole the foregoing and delivered the shotguns to appellant, who
received them while under the weapons disability.
{¶ 22} Count 35, complicity to burglary, a violation of R.C. 2923.03(A)(2) of the
principle offense of R.C. 2911.12(A)(3) and a third-degree felony, R.C. 2923.03(F), and
Count 36, complicity to theft, a violation of R.C. 2923.03(A)(2) of the principle offense
of R.C. 2913.02(A)(1) and a fifth-degree felony, R.C. 2923.03(F), concern the same
victim. The parties stipulated that on or about August 14 to 15, 2018, a trespass by force,
stealth or deception occurred at night of an occupied structure, a hunting lodge located at
6529 West Lakeshore Drive, Ottawa County, with the purpose to commit a theft of a
12.
chainsaw, hunting equipment, an electric golf cart and a television valued between
$1,000 and $7,500 and without the consent of the owner, Jim Cornell. The evidence at
trial established that appellant aided or abetted three codefendants to commit the trespass
and theft.
{¶ 23} Count 39, complicity to breaking and entering, a violation of R.C.
2923.03(A)(1) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
2923.03(F), and Count 40, complicity to theft, a violation of R.C. 2923.03(A)(1) of the
principle offense of R.C. 2913.02(A)(1) and a fourth-degree felony, R.C. 2923.03(F),
concern the same victim. The parties stipulated that on or about June 25 to 26, 2018, a
trespass by force, stealth or deception occurred at night of an unoccupied structure, a
storage container located at 801 State Route 269, Martins Point Road, Erie County, with
the purpose to commit a theft of a side-by-side ATV, tools and hunting equipment valued
between $7,500 and $150,000 and without the consent of the owner, Standing Rush,
LLC. The evidence at trial established that appellant solicited or procured two
codefendants to commit the trespass and theft.
{¶ 24} Counts 41 to 43 concern the same victim: complicity to breaking and
entering, a violation of R.C. 2923.03(A)(1) of the principle offense of R.C. 2911.13(A)
and a fifth-degree felony, R.C. 2923.03(F); complicity to theft, a violation of R.C.
2923.03(A)(1) of the principle offense of R.C. 2913.02(A)(1) and a first-degree
misdemeanor, R.C. 2923.03(F); and receiving stolen property, a violation of R.C.
2913.51(A) and a first-degree misdemeanor, R.C. 2913.51(C). The parties did not
13.
stipulate to these counts. The evidence at trial established that on or about July 14
through 16, 2018, appellant solicited or procured four codefendants to commit the offense
of breaking and entering at night of an unoccupied structure, storage containers, owned
by Joseph Brunkhorst located at 7000 Barrett Road, Erie County, to commit a theft of
duck decoys valued under $1,000. In addition, appellant received, retained or disposed of
the duck decoys obtained through theft as part of a continuing course of criminal conduct
pursuant to R.C. 2901.12(H). Appellant paid two codefendants for their “cut” of the
stolen duck decoys, picked up the stolen duck decoys from the codefendant temporarily
storing them, and then proceeded to sell some of them to Rod Wozniak, a buyer victim,
who testified at trial. Through law enforcement investigations, Mr. Wozniak identified
the stolen property.
{¶ 25} Count 47 is for complicity to theft, a violation of R.C. 2923.03(A)(2) of the
principle offense of R.C. 2913.02(A)(1) and a fourth-degree felony, R.C. 2923.03(F).
The parties stipulated that on or about July 27, 2018, a theft occurred from a construction
site near the intersection of State Route 523 and County Road 184 of an industrial-sized
water pump on a trailer valued between $7,500 and $150,000 without the consent of the
owner, Ohio CAT. The evidence at trial established that appellant aided or abetted three
codefendants to commit the theft and that appellant sought to sell the pump to a co-
defendant who owned a construction business that dredges wetlands.
{¶ 26} Count 48, complicity to breaking and entering, a violation of R.C.
2923.03(A)(2) of the principle offense of R.C. 2911.13(A) and a fifth-degree felony, R.C.
14.
2923.03(F), and Count 49, complicity to theft, a violation of R.C. 2923.03(A)(2) of the
principle offense of R.C. 2913.02(A)(1) and a fifth-degree felony, R.C. 2923.03(F),
concern the same victim. The parties stipulated that on or about July 12 through 16,
2018, a trespass by force, stealth or deception occurred at night of an unoccupied
structure, a barn located at 6105 O’Neal Road, Ottawa County, with the purpose to
commit a theft of large water pumps, weed whackers, and a metal cart valued between
$1,000 and $7,500 and without the consent of the owner, Westlake Sportsman
Association. The evidence at trial established that appellant aided or abetted two
codefendants to commit the trespass and theft.
D. Sentencing
{¶ 27} Sentencing occurred on January 10, 2020, and for sentencing purposes
pursuant to RC. 2941.25 the trial court merged Counts 2 and 3, Counts 5 and 6, Counts 7
and 8, Counts 9 and 10, Counts 11 and 12, Counts 13 and 14, Counts 17 and 18, Counts
35 and 36, Counts 39 and 40, Counts 41, 42 and 43, and Counts 48 and 49. The
unmerged counts remained Counts 1, 4, 34, and 47. Appellee elected the following
merged counts for sentencing: Counts 3, 6, 8, 10, 11, 14, 18, 35, 40, 41 and 49. The trial
court then sentenced appellant to consecutive prison terms totaling 25 years as follows:
ten years for Count 1; 30 months each for Counts 34 and 35; 14 months each for Counts
3, 8, 10, 14, 40 and 47; and six months each for Counts 4, 6, 11, 18, 41 and 49.
{¶ 28} Appellant stated at sentencing, “I am innocent. That is all I got (sic.) to
say. I have had enough of this crap.”
15.
{¶ 29} Appellant’s trial counsel presented mitigating evidence at sentencing,
including appellant’s honesty about his prior criminal record with guilty pleas, the glaring
lack of physical evidence linking appellant to the crimes, and questioning the motives of
adverse witnesses who received plea deals. In frustration, appellant’s trial counsel
pointed out, “We know the Court is going to issue a lengthy sentence. His record speaks
for itself.” Appellant’s trial counsel also pointed out that appellant’s mother, wife and
others said that, “Rosco from the past is not who he is now.” To emphasize how
appellant has changed from the past, appellant’s trial counsel explained appellant’s
unwavering claim of his innocence, “Even today, he could mitigate his sentence by
apologizing, saying he did something he didn’t do, to that extent because that is one of
the factors this Honorable Court has to consider. He maintains his innocence, Judge.”
{¶ 30} Prior to announcing the sentence, the trial court stated, “I have considered
your statements here today. I have considered those facts and circumstances learned
throughout the course of the trial or trials. I have certainly considered the decision of the
jury in their finding of guilt in this matter.” As further mitigation, appellant’s trial
counsel asked the trial court to reconsider imposing consecutive sentences after the trial
court determined that consecutive sentences were “necessary to protect the public from
future crime or punish the offender, and * * * consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and the danger he poses to
the public.”
16.
{¶ 31} Appellant sets forth six assignments of error in this appeal:
I. Whether defendant-appellant’s double jeopardy protections were
violated when it proceeded to a subsequent trial after a mistrial.
II. Defendant-appellant’s Fifth, Sixth, and Fourteenth Amendment
rights were violated when trial counsel’s performance was so deficient as to
deny defendant-appellant of his Constitutional rights under the federal and
Ohio state constitutions.
III. The trial court erred in sentencing defendant-appellant to a
twenty-five year term of incarceration.
IV. The trial court erred when it sentenced defendant-appellant to a
term of incarceration grossly disproportionate to the conduct.
V. Defendant-appellant’s conviction was against the manifest
weight of the evidence.
VI. The state failed to present sufficient evidence to sustain a
conviction against defendant-appellant.
II. Double Jeopardy
{¶ 32} In support of his first assignment of error, appellant argues his 27
convictions must be reversed because his federal double jeopardy protections were
violated by a third jury trial where appellee failed to show manifest necessity for a
mistrial, as required by State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973
N.E.2d 243, ¶ 25. Appellant argues the trial court failed to adequately reflect on and
17.
inquire about the existence of juror bias prior to declaring the second mistrial. In
response, appellee argues appellant waived his defense of double jeopardy when he failed
to raise it prior to the third trial.
{¶ 33} “The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution ensures that a state may not put a defendant in jeopardy twice for the same
offense.” Id. The Double Jeopardy Clause “protect[s] against three abuses: (1) ‘a second
prosecution for the same offense after acquittal,’ (2) ‘a second prosecution for the same
offense after conviction,’ and (3) ‘multiple punishments for the same offense.’” State v.
Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 15, quoting North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled
on other grounds. It is undisputed in the record that prior to the commencement of the
third trial, appellant had not been acquitted, convicted, or punished on the merits for the
same 27 offenses.
A. Waiver
{¶ 34} We will first address whether appellant waived his double jeopardy
defense. The Ohio Supreme Court “has held many times that the plea of double jeopardy
is [a] matter of defense which must be raised in the trial court or it is waived.” Neal v.
Maxwell, 175 Ohio St. 201, 202, 192 N.E.2d 782 (1963). Appellant’s failure to raise
before the trial court his double jeopardy defense is subject to plain error review. State v.
Body, 8th Dist. Cuyahoga No. 109388, 2021-Ohio-703, ¶ 23; see State v. Foust, 105 Ohio
St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 139.
18.
{¶ 35} “An appellate court need not consider an error that was not called to the
attention of the trial court at a time when such error could have been avoided or corrected
by the trial court.” State v. Tuggle, 6th Dist. Lucas No. L-07-1284, 2008-Ohio-5020, ¶
75, citing State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977), paragraph one
of the syllabus, overruled on other grounds. “As a result, such error is waived absent
plain error.” Id., citing State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).
“Plain errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” Crim.R. 52(B). We take notice of the Crim.R.
52(B) plain error doctrine “with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph three of the syllabus.
{¶ 36} The party asserting plain error has the burden to provide evidence
supporting three determinations: (1) an actual error, i.e., a deviation from the legal rule,
(2) the error was plain within the meaning of Crim.R. 52(B), i.e., an obvious defect in the
trial proceedings, and (3) the error must have affected substantial rights, i.e., affected the
outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d
306, ¶ 16-17. Our plain error analysis of Crim.R. 52(B) will not warrant a reversal of
appellant’s convictions unless appellant establishes “that the outcome of the trial would
clearly have been different but for the trial court’s plain error.” State v. Waddell, 75 Ohio
St.3d 163, 166, 661 N.E.2d 1043 (1996), citing Moreland at 63.
19.
{¶ 37} We reviewed the record and do not find appellant points to evidence
supporting the first and second elements for a claim of plain error. Even if appellant had
met his burden for the first two elements, we will next review why appellant also fails on
the third element: whether appellant’s substantial rights were violated if there was no
“manifest necessity” for the second mistrial.
B. Manifest Necessity or High Degree of Necessity
{¶ 38} “The Double Jeopardy Clause deals specifically with the issue whether a
defendant may be retried after a trial court has declared a mistrial.” State v. Anderson,
148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 29. The Ohio Supreme Court has
found, “the Double Jeopardy Clause is not offended when the state seeks to retry a
defendant after a series of properly declared mistrials.” Id. at ¶ 46. Double jeopardy will
not bar a retrial over a defendant’s objection to a mistrial if: (1) there was a “manifest
necessity” or “high degree” of necessity for ordering a mistrial, or (2) “the ends of public
justice would otherwise be defeated.” (Citations omitted.) State v. Widner, 68 Ohio
St.2d 188, 189-90, 429 N.E.2d 1065 (1981). Appellant does not contest the second
prong.
{¶ 39} We review a trial court’s determination of “manifest necessity” to declare a
mistrial for “sound discretion.” Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973
N.E.2d 243, at ¶ 26 and 28; State v. Gonzalez, 6th Dist. Huron No. H-99-002, 1999 WL
1101976, *5 (Dec. 3, 1999); State v. Schmidt, 65 Ohio App.2d 239, 244-45, 417 N.E.2d
1264 (6th Dist.1979). The Ohio Supreme Court has determined that a trial court
20.
exercises “sound discretion” if the record demonstrates that “the trial court acted with
deliberateness” when reaching its decision to declare a mistrial. Gunnell at ¶ 33.
However, “a trial judge declaring a mistrial is not required to make explicit findings of
‘“manifest necessity”’ nor to ‘articulate on the record all the factors which informed the
deliberate exercise of his discretion.’” Renico v. Lett, 559 U.S. 766, 775, 130 S.Ct. 1855,
176 L.Ed.2d 678 (2010), quoting Arizona at 517.
{¶ 40} “Manifest necessity” balances a defendant’s right to have the trial
concluded by a particular tribunal with the public interest in affording the prosecutor one
full and fair opportunity to present the evidence to an impartial jury. Arizona v.
Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Appellee’s burden
to show “manifest necessity” for a mistrial remains even where the problem of possible
juror bias was created by the defendant’s own misconduct. Id. at 510-511; State v.
Malloy, 2d Dist. Clark No. 09CA0092, 2011-Ohio-30, ¶ 25; State v. Swanson, 10th Dist.
Franklin No. 89AP-199, 1989 WL 99410, *1-3 (Aug. 29, 1989).
{¶ 41} We extend great deference to the trial court’s evaluation of the likelihood
that the impartiality of one or more jurors may have been affected by appellant’s
improper testimony because the extent of the possible jury bias cannot be measured.
Arizona at 511. However, we recognize that such deference does not end our inquiry
under our obligation to determine the trial court exercised “sound discretion” and not
acted “irrationally or irresponsibly” when it declared the second mistrial. Id. at 514. A
trial court does not act “precipitately in response to the prosecutor’s request for a
21.
mistrial” where there is evidence in the record the trial court gave full opportunity to the
parties to explain their positions on the propriety of the second mistrial. Id. at 515-16.
{¶ 42} There is nothing in Gunnell to suggest that an inquiry of jury members was
required where, as here, improper evidence or argument was interjected into the trial
itself. In those situations, a trial court relies upon its own personal observations of the
entire proceeding – including, but not limited to, its personal assessment of the
prejudicial impact of the improper evidence or argument -- to determine whether a fair
trial is still possible. Although a trial court may conduct an additional inquiry of jury
members in those situations, the failure to conduct such an inquiry does not, in and of
itself, demonstrate the lack of sound discretion.
{¶ 43} We find the trial court did not act irrationally or irresponsibly just because
it failed to conduct an individual inquiry with jury members regarding the prejudicial
impact of appellant’s improper testimony. To the contrary, the record demonstrates that
the trial court acted rationally, responsibly, and deliberately when it considered appellee’s
motion for mistrial. The trial court listened to the arguments of both sides and considered
other plausible alternatives, including the possibility of a curative instruction. The court
took a recess and came back on the record. The trial court then allowed the defense
counsel and the prosecutor another opportunity to argue their respective positions before
making its ruling. We further find the trial court did not abuse its discretion in finding a
“manifest necessity” or “high degree” of necessity for the second mistrial.
{¶ 44} Appellant’s first assignment of error is not well-taken.
22.
III. Ineffective Assistance of Counsel
{¶ 45} In support of his second assignment of error, appellant argues that his trial
counsel was ineffective for three reasons: (1) failing to object to the inclusion of a
complicity jury instruction, (2) failing to file a motion to dismiss on double jeopardy
grounds prior to the third jury trial, and (3) failing to present mitigating circumstances at
his sentencing and conceding aggravating factors.
{¶ 46} An ineffective assistance of counsel claim must overcome the strong
presumption that a properly licensed Ohio lawyer is competent. State v. Hamblin, 37
Ohio St.3d 153, 155-56, 524 N.E.2d 476 (1988). The record does not show appellant
questioned the licensure of his trial counsel, so his competence is presumed.
{¶ 47} To overcome this presumption of competence, appellant has the burden to
show both: (1) deficient performance by his trial counsel below an objective standard of
reasonable representation, and (2) a reasonable probability of prejudice that but for his
trial counsel’s errors, he would not have been convicted of 27 offenses. State v. Bradley,
42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.
Appellate scrutiny of trial counsel’s performance is highly deferential. Id. at 142.
“Debatable trial tactics generally do not constitute a deprivation of effective counsel.”
State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995).
A. Complicity Jury Instruction
{¶ 48} Appellant declares, “In this case, trial counsel’s failure to object to the
inclusion of a complicity jury instruction was ineffective,” but provides no specific
23.
evidence of an error for our consideration. App.R. 12(A)(2). Nevertheless, we construe
appellant’s argument relates to R.C. 2923.03(D), which requires the trial court to
substantially give the following instruction where an alleged accomplice of the defendant
testifies in a case in which the defendant is charged with complicity in the commission of
or an attempt to commit an offense:
“The testimony of an accomplice does not become inadmissible
because of his complicity, moral turpitude, or self-interest, but the admitted
or claimed complicity of a witness may affect his credibility and make his
testimony subject to grave suspicion, and require that it be weighed with
great caution. It is for you, as jurors, in the light of all the facts presented to
you from the witness stand, to evaluate such testimony and to determine its
quality and worth or its lack of quality and worth.”
{¶ 49} “After arguments are completed, a trial court must fully and completely
give the jury all instructions which are relevant and necessary for the jury to weigh the
evidence and discharge its duty as the fact finder. (Crim.R. 30 [A], construed.)” State v.
Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. After
both sides rested and gave closing arguments, the trial court read to the jury 187-pages of
instructions for its deliberations. We find the instructions were full and complete,
including the verbatim instructions mandated by R.C. 2923.03(D). State v. Newman, 6th
Dist. Erie No. E-11-065, 2013-Ohio-414, ¶ 78.
24.
{¶ 50} We do not find appellant’s trial counsel’s failure to object to the inclusion
of the R.C. 2923.03(D) jury instruction resulted in any reversible error. State v. Williams,
6th Dist. Lucas No. L-17-1186, 2019-Ohio-2657, ¶ 50. “The effect of [R.C. 2923.03(D]
is to leave the assessment of an accomplice’s credibility to a jury after it has been
properly instructed concerning the treatment of that testimony.” State v. O’Dell, 45 Ohio
St.3d 140, 145, 543 N.E.2d 1220 (1989). The record shows the jury performed its duty
after receiving the required instructions, and we do not find appellant showed his trial
counsel’s assistance was ineffective.
B. Motion to Dismiss on Double Jeopardy Grounds
{¶ 51} Appellant argues, “The failure to object to the retrial of defendant after the
empaneling of a jury, the complete presentation of the state’s case, and the granting of a
mistrial over state’s objection is, per se, deficient.” Appellant further argues, “Had
counsel’s performance not been so deficient as to deny Appellant of his constitutional
rights, the outcome of the case would have necessarily been different.”
{¶ 52} Appellant’s trial counsel is not required to perform futile acts. Foust, 105
Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, at ¶ 125. In light of our decision on
appellant’s first assignment of error, we do not find that appellant’s trial counsel’s failure
to file a motion to dismiss on double jeopardy grounds was ineffective.
C. Sentencing Mitigation
{¶ 53} Appellant argues his trial counsel was ineffective because at sentencing his
trial counsel merely acknowledged appellant “could have apologized but did not” and
25.
acquiesced that “we know that the court is going to issue a lengthy sentence, his record
speaks for itself.” Appellant argues his age at forty-one years and his four prior
convictions -- “of which he took responsibility for by means of a plea” -- were mitigation
factors his trial counsel should have raised.
{¶ 54} The presentation of mitigating evidence at sentencing is a matter of trial
strategy based on the totality of the circumstances. State v. Taft, 6th Dist. Huron No. H-
18-003, 2019-Ohio-1565, ¶ 50. The failure to present mitigating evidence at the penalty
stage does not in itself constitute proof of ineffective assistance of counsel or deprive the
defendant of a fair trial. Hamblin, 37 Ohio St.3d at 157, 524 N.E.2d 476.
{¶ 55} The record contains substantial mitigation evidence presented by
appellant’s trial counsel for the trial court’s consideration for mercy and leniency. We
find the record shows the trial court was aware of both appellant’s age and his prior guilty
pleas at the time of sentencing. Even if the trial court was not aware of those factors,
“there is no prejudice when the new mitigating evidence ‘would barely have altered the
sentencing profile presented’ to the decisionmaker.” Sears v. Upton, 561 U.S. 945, 954,
130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010), quoting Strickland v. Washington, 466 U.S.
668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant’s speculations do not
support a finding of ineffective assistance of counsel. Taft at ¶ 51.
{¶ 56} We reviewed the entire record and do not find that appellant’s trial
counsel’s performance was ineffective. We do not find both deficient performance by his
trial counsel below an objective standard of reasonable representation and a reasonable
26.
probability of prejudice that but for his trial counsel’s alleged errors, appellant would not
have been sentenced to 25 years in prison for his 27 convictions.
{¶ 57} Appellant’s second assignment of error is not well-taken.
IV. Felony Sentencing
{¶ 58} In support of his third and fourth assignments of error, appellant argues the
trial court erred in sentencing him to 25 years in prison for three reasons: (1) the trial
court impermissibly relied on appellant’s testimony from the prior mistrial; (2)
consecutive sentences were unwarranted by, and inconsistent with, the facts in the record;
and (3) the total sentence was “grossly disproportionate” to his conduct.
{¶ 59} We review a challenge to felony sentencing pursuant to R.C.
2953.08(G)(2), which states, in part:
The appellate court’s standard for review is not whether the
sentencing court abused its discretion. The appellate court may take any
action authorized by this division if it clearly and convincingly finds either
of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
27.
{¶ 60} Although “contrary to law” is an undefined term, the Ohio Supreme Court
guides us that, “R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not supported
by the record under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, ¶ 39.
A. Prior Mistrial Testimony
{¶ 61} Appellant argues the trial court erred by relying on testimony from the
second mistrial: “In its analysis of R.C. 2929.12, the trial court stated, ‘I have considered
your statements here today. I have considered those facts and circumstances learned
throughout the course of the trial or trials.’ Sentencing T. 10 (emphasis added.).” We
lack the authority to grant the relief appellant seeks by reviewing if the record supports
the sentence under R.C. 2929.12. Id.; State v. Orzechowski, 6th Dist. Wood No. WD-20-
029, 2021-Ohio-985, ¶ 13.
B. Consecutive Sentences
{¶ 62} Appellant argues consecutive sentences were unwarranted by, and
inconsistent with, the facts in the record. The jury convicted appellant for one first-
degree felony offense, two third-degree felony offenses, six fourth-degree felony
offenses, 15 fifth-degree felony offenses, and three first-degree misdemeanor offenses.
The trial court merged 23 offenses down to 11 felony offenses for sentencing purposes
and ordered each individual prison term to be served consecutively for a total of 25 years.
Appellant does not dispute the merger of offenses at sentencing.
28.
{¶ 63} When sentencing prison terms, the trial court is required “to adhere to R.C.
2929.14(C)(4) and 2929.41(A) in imposing consecutive sentences and to make the
required findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 35. R.C. 2929.41(A) states a presumption for concurrent sentencing, except as
provided for in R.C. 2929.14(C). The trial court is required to make the findings
mandated by R.C. 2929.14(C)(4) both at the sentencing hearing and incorporate them
into its sentencing entry, “but it has no obligation to state reasons to support its findings.
Nor is it required to give a talismanic incantation of the words of the statute, provided
that the necessary findings can be found in the record and are incorporated into the
sentencing entry.” Id. at ¶ 37.
{¶ 64} R.C. 2929.14(C)(4)(c) requires a three-step analysis by the trial court: (1)
finding that the consecutive service is necessary to protect the public from future crime or
to punish the offender; (2) finding that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses to the
public; and (3) finding the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender. State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-1000, ¶ 11.
{¶ 65} We reviewed the record and find clear and convincing evidence supporting
the imposition of consecutive sentences pursuant to R.C. 2929.14(C)(4)(c). Both the
sentencing hearing transcript and the subsequent judgment entry reflect the trial court
engaged in the required analysis and explicitly made the required findings in the record.
29.
C. “Grossly Disproportionate” Sentence
{¶ 66} Appellant next argues his 25-year incarceration “does not, in any manner,
fit the crime” of non-violent theft offenses of “faux ducks, fishing poles, two sport
weapons, and two handguns.” Appellant argues that the “egregiousness of the length of
sentence is shocking to common concepts of fundamental fairness” where 25 years is
“equivalent to the statutory minimum sentence for aggravated murder with capital
specifications.”
{¶ 67} The trial court sentenced appellant to prison terms by following the
applicable sentencing statutes for the merged offenses as follows: 10 years for Count 1, a
first-degree felony, which is within the statutory range and less than the maximum period
pursuant to R.C. 2929.14(A)(1)(b); 30 months each for Counts 34 and 35, third-degree
felonies, which is within the statutory range and less than the maximum period pursuant
to R.C. 2929.14(A)(3)(b); 14 months each for Counts 3, 8, 10, 14, 40 and 47, fourth-
degree felonies, which is within the statutory range and less than the maximum period
pursuant to R.C. 2929.14(A)(4); and six months each for Counts 4, 6, 11, 18, 41 and 49,
fifth-degree felonies, which is the statutory minimum period pursuant to R.C.
2929.14(A)(5). Each of appellant’s individual prison terms is within the statutory range
authorized by the Ohio General Assembly for the particular offense. State v. Hairston,
118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21.
{¶ 68} Appellant does not dispute that the sentence for any particular offense is
outside of the statutory guidelines, and we do not find any trial court error in adhering to
30.
them. “Because the individual sentences imposed by the court are within the range of
penalties authorized by the legislature, they are not grossly disproportionate or shocking
to a reasonable person or to the community’s sense of justice and do not constitute cruel
and unusual punishment.” Id. at ¶ 23. The 25-year aggregate prison term, resulting from
consecutive imposition of reasonable individual sentences, is also not grossly
disproportionate. Id.
{¶ 69} We find clear and convincing evidence in the record supporting the felony
sentences imposed by the trial court. Appellant’s third and fourth assignments of error
are not well-taken.
V. Manifest Weight of the Evidence
{¶ 70} In support of his fifth assignment of error, appellant argues his complicity
convictions should be vacated because the “quality of evidence offered in support of the
conviction in this matter is against the manifest weight of the evidence. The evidence
here is not credible.” Appellant argues the jury lost its way when it convicted him
because the witnesses who testified against him were criminals who received “extreme
leniency” in their own criminal cases for the same conduct. “Without their testimony,
there is no evidence linking Neff to the property or the thefts.”
{¶ 71} A challenge, based on the manifest weight of the evidence to a jury,
questions its effect in inducing belief of appellant’s guilt; it questions whether the jury
could find the inclination of a greater amount of credible evidence was admitted at trial to
sustain that decision than not. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
31.
541 (1997). Judgments supported by some competent and credible evidence going to all
the essential elements of the offense will not be against the manifest weight of the
evidence. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶ 72} This court has repeatedly stated that in determining whether a verdict is
against the manifest weight of the evidence, we review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether the trier of fact clearly lost its way to create such a manifest
miscarriage of justice as to require a new trial. State v. Reynolds, 2017-Ohio-1478, 89
N.E.3d 235, ¶ 47 (6th Dist.). A conviction will be overturned only in exceptional cases.
Id. The unanimous concurrence of all three judges of a court of appeals panel is required
to overturn a judgment that results from a jury. Thompkins at 389.
{¶ 73} The crime of complicity is governed by R.C. 2923.03(A)(2), which states,
“No person, acting with the kind of culpability required for the commission of an offense,
shall do any of the following: * * * (2) Aid or abet another in committing the offense.”
The Ohio Supreme Court defines “aid or abet” as assisting or facilitating the commission
of a crime or promoting its accomplishment. State v. McFarland, 162 Ohio St.3d 36,
2020-Ohio-3343, 164 N.E.3d 316, ¶ 27. The complicit party must also share the criminal
intent of the principal, which may be inferred from the circumstances surrounding the
crime, including the complicit party’s presence, companionship, and conduct before and
after the principal offense is committed. Id. at ¶ 39. “Aiding and abetting has been
characterized as a substantive and independent offense so that aiders and abettors may be
32.
prosecuted and convicted as principals without the trial or conviction of the principal
offender.” State v. Henderson, 6th Dist. Lucas No. L-80-330, 1981 WL 5775, *2 (Sept.
4, 1981).
{¶ 74} The witnesses collectively testified at trial about their individual roles in the
theft ring and about the role they saw, heard and knew appellant played in the theft ring.
Although appellant attacks the credibility of the witnesses because of their plea deals,
only 3 of the 14 witnesses who testified at trial had such plea deals, and the jury was
instructed pursuant to R.C. 2923.03(D) to cautiously weigh their testimony. After
receiving all of the evidence, the jury evaluated the credibility of the evidence presented
during trial and found appellant not guilty of 17 of the 44 offenses.
{¶ 75} We find the record shows some competent and credible evidence going to
all the essential elements of the 27 offenses of which the jury convicted appellant.
Despite appellant’s assertions to the contrary, we do not find the trier of fact clearly lost
its way to create such a manifest miscarriage of justice as to require a new trial.
{¶ 76} Appellant’s fifth assignment of error is not well-taken.
VI. Sufficiency of the Evidence
{¶ 77} In support of his sixth assignment of error, appellant argues that when the
evidence is viewed in the light most favorable to appellee, “there was insufficient
evidence to prove that Defendant-Appellant Neff committed these offenses or was
complicit in the thefts.”
33.
{¶ 78} The record shows that after appellee rested its case, appellant moved for
acquittal pursuant to Crim.R. 29(A). Crim.R. 29(A) states, “The court on motion of a
defendant * * *, after the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the indictment * * *, if the
evidence is insufficient to sustain a conviction of such offense or offenses.” After
hearing each party’s arguments, the trial court denied appellant’s Crim.R. 29(A) motion.
{¶ 79} Appellant’s Crim.R. 29(A) motion was governed by the same standard as a
challenge to the sufficiency of evidence to sustain a verdict at trial. State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. We review de novo as a
question of law a challenge whether the evidence is legally sufficient to sustain a verdict.
Thompkins, 78 Ohio St.3d 380 at 386, 678 N.E.2d 541. Appellant’s argument on appeal
mirrors his arguments for acquittal during trial: (1) “there’s absolutely no physical
evidence”; (2) “there’s no corroborating evidence whatsoever on any of these charges”;
and (3) “It is all the testimony of co-defendants.”
{¶ 80} Appellate courts do not evaluate the credibility of the evidence when
determining its sufficiency because our role is to decide whether the evidence, if
believed, can sustain the verdict as a matter of law. State v. Myers, 154 Ohio St.3d 405,
2018-Ohio-1903, 114 N.E.3d 1138, ¶ 132. “‘The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.’”
(Citation omitted.) McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, at
34.
¶ 24. All admissible evidence may be considered on a claim of insufficient evidence.
State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80.
{¶ 81} Upon review of all admissible evidence in the record we find appellant’s
challenges to the sufficiency of the evidence are without merit. We find, after viewing
the evidence in a light most favorable to the prosecution, there was sufficient evidence in
the record, if believed by any rational trier of fact, to find the essential elements of the 27
offenses were proven beyond a reasonable doubt and support the verdicts as a matter of
law.
{¶ 82} Appellant’s sixth assignment of error is not well-taken.
VII. Conclusion
{¶ 83} On consideration whereof, we find that substantial justice has been done in
this matter. The judgment of the Ottawa County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
35.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
36.
State v. Neff
Combined Opinion