[Cite as State v. Brown, 2011-Ohio-2285.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95481




                                     STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.


                                       STANLEY BROWN

                                                  DEFENDANT-APPELLANT




                         JUDGMENT:
             AFFIRMED IN PART, REVERSED IN PART
                       AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-535872

        BEFORE: Jones, J., Stewart, P.J., and Sweeney, J.

    RELEASED AND JOURNALIZED:                       May 12, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender

BY: David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: James M. Rice
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                       ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

         {¶ 1} Defendant-appellant, Stanley Brown (“Brown”), appeals his burglary and theft

convictions.     We affirm in part and reverse and remand in part.

         I.   Procedural History and Facts

         {¶ 2} Brown was indicted in April 2010 on two counts of burglary and one count of

theft.   The burglary charges contained notices of prior conviction and repeat violent offender
specifications.     After Brown waived his right to a jury trial, the case proceeded to a bench

trial.

         {¶ 3} The state presented two witnesses: Hieu Lieu (“Lieu”), the victim, and Officer

Sanchez, the arresting officer.       Their testimonies established the following.     Lieu was the
             1




owner of a nail and beauty supply store on Superior Avenue in Cleveland.              The downstairs

portion of the building was the business and the upstairs portion of the building was Lieu’s

apartment.       Ten surveillance cameras were positioned in or about the building.

         {¶ 4} Lieu’s office and the inventory were in the back portion of the business.

Sometimes deliveries were made to, and customer pick-ups were done at, the back of the

building, but generally the entrance and exit for customers was the front door.        Lieu testified

that while he is working he generally keeps the back door unlocked, but locks it when he is

finished working for the day.      On the day of the incident, Lieu had been in the back portion of

the business, but left momentarily to go upstairs to his apartment.

         {¶ 5} When Lieu returned to the office, his sister-in-law told him that a man, later

identified as Brown, came into the back of the business, stole a drill, and left.     Lieu looked at

one of the video surveillance tapes and saw what his sister-in-law had described.           Another

tape showed the direction Brown had traveled when he left, so Lieu pursued, and caught up to

him.     Lieu confronted Brown and demanded his drill back, but Brown denied having it.            A

bystander called the police; Officer Sanchez arrived a minute or two later.


         The record does not indicate the officer’s first name.
         1
       {¶ 6} After Lieu told Officer Sanchez what had happened, Officer Sanchez asked

Brown to unzip his coat.     The drill was recovered from within Brown’s coat.      The officer

then transported Brown back to Lieu’s business and viewed the surveillance tape showing a

man entering the back of the business, taking the drill, and leaving.    Sanchez testified that

Brown was the man shown on the tape, so he arrested him.

       {¶ 7} After being advised of his Miranda rights, Brown told the officer that he only

went into the business to get an application and the drill was his because he found it in a

dumpster in the back of the business.   Sanchez testified that the recovered drill matched a set

of tools in Lieu’s office.

       {¶ 8} It was upon this evidence that Brown was convicted as charged.               After

convicting him, the trial court immediately proceeded to sentence Brown to a four-year prison

term, which consisted of four years on each of the burglary counts, and 60 days on the theft

count, all to be served concurrently.

       {¶ 9} Brown raises the following assignments of error for our review:

       “[I.] Defendant Stanley Brown was denied effective assistance of counsel in violation of
       the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10
       of the Ohio Constitution.

       “[II.] The trial court erred by not sua sponte raising the issue of the defendant’s
       competence to stand trial.

       “[III.] The trial court erred by allowing the admission of hearsay testimony from Ofc.
       Sanchez.”

       “II.   Law and Analysis
       {¶ 10} In his assignments of error, Brown contends that his counsel was ineffective

because he (1) did not object to Officer Sanchez’s hearsay testimony; (2) elicited further

hearsay testimony from the officer on cross-examination; and (3) did not challenge Brown’s

competence to stand trial.    Brown further contends that the trial court erred by not raising

Brown’s competency on its own and by allowing Sanchez’s hearsay testimony.

       {¶ 11} In order to prevail on an ineffective assistance of counsel claim, a defendant

must meet the two-pronged test enunciated in Strickland v. Washington (1984), 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674; see, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373, certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768.

Initially, the defendant must show that counsel’s performance was deficient.         To meet that

requirement, the defendant must show counsel’s error was so serious that counsel was not

functioning as the “counsel” guaranteed by the Sixth Amendment.         The defendant may prove

counsel’s conduct was deficient by identifying acts or omissions that were not the result of

reasonable professional judgment.     The court must then determine whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance.   Strickland at 690.

       {¶ 12} Next, if the defendant successfully proves that counsel’s assistance was

ineffective, the second prong of the Strickland test requires the defendant to prove prejudice in

order to prevail.   Id. at 692.   To meet that prong, the defendant must show that counsel’s

errors were so serious as to deprive him of a fair trial, a trial whose result is reliable.   Id. at
687.   A defendant meets this standard with a showing “that there is a reasonable probability

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

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

       {¶ 13} Brown contends that the following was improper hearsay testimony: (1) Officer

Sanchez’s testimony on direct examination that, “[n]ext, I conferred with the victim, he said * *

* [Brown] went to my store through the back door, went into my office, stole a drill, I have a

videotape and he had been recorded, I believe he has got that drill with him”; and (2) Officer

Sanchez’s testimony on cross-examination that, “I learned from the victim that the * * *

business is downstairs and the upstairs is for them to live in.”    We disagree with Brown’s

contention.

       {¶ 14} In State v. Thomas (1980), 61 Ohio St.2d 223, 400 N.E.2d 401, the Ohio

Supreme Court addressed the issue of a police officer testifying about what he learned during

his investigation and held as follows:

       “The testimony at issue was offered to explain the subsequent investigative activities of
       the witnesses. It was not offered to prove the truth of the matter asserted. It is well
       established that extrajudicial statements made by an out-of-court declarant are properly
       admissible to the actions of a witness to whom the statement was directed. * * * The
       testimony was properly admitted for this purpose.” Id. at 232.

       {¶ 15} Here, Officer Sanchez testified as set forth above in response to the state’s

question about what he did upon arriving at the initial scene and the defense’s question about

what he did upon arriving at Lieu’s place of business.   The testimony was not offered to prove
the truth of the matter asserted, that is, it was not hearsay.   Rather, it was offered to explain

how the officer investigated the case.

       {¶ 16} Further, Lieu testified, offering the same testimony contained in the challenged

testimony, and was subject to cross-examination.     Thus, Brown’s right to confrontation, which

is what the general prohibition on hearsay    concerns, was not violated.

       {¶ 17} Accordingly, defense counsel was not ineffective by failing to object to the

testimony or by its questioning on cross-examination, and the trial court did not err by allowing

the testimony.   The first and third assignments of error are therefore overruled.

       {¶ 18} Brown further contends that his counsel was ineffective, and the trial court erred,

by not raising the issue of his competency.   We disagree.

       {¶ 19} A defendant is legally incompetent if “incapable of understanding the nature and

objective of the proceedings against [him] or of assisting in [his] defense[.]”              R.C.

2945.37(G); State v. Tibbetts (2001), 92 Ohio St.3d 146, 164, 749 N.E.2d 226, certiorari denied

(2002), 534 U.S. 1144, 122 S.Ct. 1100, 151 L.Ed.2d 997.          A defendant is presumed to be

competent to stand trial unless proof by a preponderance of the evidence is presented as to the

defendant’s incompetency. State v. Berry (1995), 72 Ohio St.3d 354, 360, 650 N.E.2d 433.

       {¶ 20} Moreover, a defendant has the right to a hearing on the issue of competency

“where the record contains ‘sufficient indicia of incompetence,’ such that an inquiry into the

defendant’s competency is necessary to ensure the defendant’s right to a fair trial.” Id. at 359,

650 N.E.2d 433, quoting Drope v. Missouri (1975), 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d
103.   However, counsel need not raise meritless issues or even all arguably meritorious issues.

 State v. Taylor (1997), 78 Ohio St.3d 15, 31, 676 N.E.2d 82, certiorari denied (1997), 522

U.S. 851, 118 S.Ct. 143, 139 L.Ed.2d 90.

       {¶ 21} Brown contends that his competence should have been an issue before the trial

court based on (1) his interaction with the court prior to trial; (2) his counsel’s awareness of his

mental health issues; and (3) his prior mental health history.

       {¶ 22} Upon review of Brown’s interaction with the court prior to trial, we do not find

“sufficient indicia of incompetence.”        The specific interaction cited by Brown            occurred

when the court asked him if it was correct that he did not want his attorney to pursue a plea

agreement with the state.     Brown responded that he was “not guilty of burglary.            I don’t do

burglaries.”   After informing Brown of the minimum mandatory term under the state’s

proposed offer, Brown said that he had been “in court for burglary once before, and they found

me not guilty by appeal. * * * [The judge] made a mistake in my sentencing. * * * Presently I

got an appeal for this case right now.     I don’t do burglaries.”

       {¶ 23} The trial court informed Brown that he could not have an appeal unless he was

convicted, to which he responded, “I know that.”           The court asked Brown what he meant

about having an appeal, and he responded, “I needed some help for my personal self-being.                I

don’t do burglaries.    That’s what I’m saying. * * * I haven’t broken into anything. * * * My

plea would be not guilty, because I am not guilty of burglaries.        I don’t do burglaries.”
                                                                                                  2




       2
        Further, Brown sent a letter to the prosecutor’s office prior to trial in which he insinuated that
       {¶ 24} On this record, an inquiry into Brown’s competency, occasioned by the court or

counsel, was not necessary.      Brown understood the nature and objective of the proceedings

against him, and was capable of assisting in his defense.       In fact, he twice interjected during

trial, once to challenge Lieu’s identification of him based on his hair color, and the second time

to note to the court that the surveillance tape did not show him with the drill in his hand.

       {¶ 25} We likewise do not find that counsel was ineffective by not seeking an inquiry

into Brown’s competency based on counsel’s awareness of Brown’s mental health issues.               In

his closing statement to the court, defense counsel acknowledged that Brown “has severe

mental illnesses.”    But counsel noted that Brown’s mental health issues did not “cloud his

ability to think clearly or make rational decisions,” but they did “cloud his ability to make

decisions with respect to what would be in his best interest.”        At sentencing, counsel further

stated that Brown was a “severe schizophrenic,” who has refused treatment.

       {¶ 26} Our review of the record, as detailed above, indicates,           as stated by defense

counsel, that Brown was able to think clearly, but may not have always made decisions that

were in his best interest.   Thus, counsel was not ineffective for not requesting a competency

evaluation.




he would not take a plea deal because stealing a drill is “petty” theft for which he would be sentenced
to either time served or probation.
        {¶ 27} In regard to prior evaluations of Brown done in other cases, the relevant issue is

whether Brown was competent to stand trial in this case.     In particular, R.C. 2945.37 provides

that:

        “A defendant is presumed competent to stand trial, unless it is proved by a
        preponderance of the evidence in a hearing under this section that because of his present
        mental condition he is incapable of understanding the nature and objective of the
        proceedings against him or of presently assisting in his defense.” (Emphasis added.)

        {¶ 28} As discussed above, we find that Brown was capable of understanding the nature

and objective of the proceedings in this case and capable of assisting in his defense.    As the

Ohio Supreme Court has held, “[a] defendant may be emotionally disturbed or even psychotic

and still be capable of understanding the charges against him and of assisting his counsel.”

State v. Bock (1986), 28 Ohio St.3d 108, 110, 502 N.E.2d 1016.

        {¶ 29} In light of the above, the second assignment of error is overruled.

        {¶ 30} Finally, we sua sponte raise the issue of the conviction on both counts of

burglary.   There was only one burglary in this case.      Brown was indicted on two counts of

burglary that specified alternate means of committing the crime.       Count 1 charged that he

committed the burglary with a person present in the building, while Count 2 did not contain the

element of someone being present during the burglary.            Because both counts involved

alternate theories for the single offense of burglary, the trial court should have merged the two

counts into a single conviction and sentence.    See State v. Huertas (1990), 51 Ohio St.3d 22,
28, 533 N.E.2d 1058.    Accordingly, we remand the case with instructions to issue a new

judgment entry of conviction and sentence.

       Affirmed in part; reversed in part and remanded for further proceedings consistent with

this opinion.

       It is ordered that appellant and appellee split the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
