[Cite as State v. Dye, 2019-Ohio-885.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, Jr.,
-vs-                                         :
                                             :
CHESTER D. DYE                               :       Case No. 18-CA-54
                                             :
        Defendant - Appellant                :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Common Pleas
                                                     Court Case No. 17-CR-00954




JUDGMENT:                                            Affirmed in Part, Reversed in part
                                                     and Remanded




DATE OF JUDGMENT:                                    March 13, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CLIFFORD J. MURPHY                                   JAMES A. ANZELMO
20 South Second Street                               446 Howland Drive
4th Floor                                            Gahanna, OH 43230
Newark, OH 43055
Licking County, Case No. 18-CA-54                                                          2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant Chester D. Dye appeals the June 15, 2018 judgment

of conviction and sentence of the Court of Common Pleas of Licking County, Ohio.

Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 1} Gary Shannon has lived on a 32 acre farm property on Evans Road in

Northport, Licking County Ohio for more than 12 years. In early October, 2017, Shannon

experienced some health issues which required a 3-day hospital stay. When he returned

home, he noticed someone had entered his property and removed a 15 foot trailer, a log

splitter, and other miscellaneous items. Shannon had built the log splitter himself and

welded his initials into the push plate of the splitter. It was very heavy, and would require

more than one person and a truck/trailer to move. The trailer was also homemade by

Shannon. Because it was used for farm chores only, Shannon never licensed the trailer.

       {¶ 2} Shannon did not immediately contact law enforcement because he was

frustrated. This was not the first time someone had stolen from him. Shannon did not turn

the matter into his homeowner’s insurance either. Instead, he set up a surveillance

camera on his property.

       {¶ 3} Shannon required hospitalization a second time towards the end of October

2017. When he returned home from that stay, he found several bags of feed missing.

Additionally, there were piles of horse tack set near the door of an outbuilding as if staged

for a later pickup. Shannon checked his surveillance camera which had captured images

of two women, both unknown to Shannon, loading sacks of grain into a Dodge Charger.
Licking County, Case No. 18-CA-54                                                        3


      {¶ 4} Shannon reported the matter to the Licking County Sheriff’s Office. Deputy

Teresa Holmes handled the matter. She reviewed the images from Shannon’s camera

and recognized both women, one of which she knew as appellant’s girlfriend who lives

with appellant at 17102 McKee Hill Road.

      {¶ 5} Shannon’s wife posted the photos captured by the camera on Facebook

and asked if anyone in the neighborhood was familiar with the vehicle. People who

responded advised they had seen the vehicle on McKee Hill Road.

      {¶ 6} On October 23, 2017, upon seeing the Facebook post, Shannon’s neighbor

James Larue went to visit Shannon. Larue took care of Shannon's animals when Shannon

was unable, and was familiar with Shannon's farm equipment, in particular the log splitter.

The two men decided to take a drive down McKee Hill Road. As they drove past

appellant's home at 17102 McKee Hill Road, they spotted Shannon's log splitter sitting in

front of the house, with Shannon's initials on the push plate visible from the road. Larue

drove to the end of the road where he pulled over and contacted the sheriff. As they sat

there, 2 women came out of the house, got in a white pickup truck and drove up to the

men. They asked what the men were doing and why they had gone by the house so

slowly. The men replied they were just driving around. The women returned to appellant's

home where "a lot of activity" followed – people "scurrying around and leaving." A man

came out of the house and covered the log splitter with a tarp. He then got into a blue car

and left the scene.

      {¶ 7} Deputy Holmes is familiar with appellant and has been to his property

several times. She responded to Shannon and Larue's call. That same evening,

Shannon's log splitter, 15-foot trailer, and miscellaneous items were recovered from
Licking County, Case No. 18-CA-54                                                            4


appellant's property. The trailer was found parked in front of one of three sheds belonging

to appellant, and still did not have a license plate. The value of the log splitter and trailer

was approximately $2,300.

       {¶ 8} Deputy Holmes obtained a search warrant for the three sheds on appellant's

property. The sacks of grain taken from Shannon's barn were found in one of the sheds.

Holmes spoke with appellant briefly on the day the warranted was executed. Appellant

did not deny the items found were on his property, and further did not deny that some

were stolen. Rather, appellant claimed it was all part of an insurance scam. He further

claimed he had purchased the trailer, but could not say from whom. Then, the day of trial,

he produced a bill of sale stating he had purchased the trailer from his girlfriend. But the

bill of sale was for a shorter trailer which was registered to his girlfriend and had been

issued a license plate.

       {¶ 9} As a result of these events, on November 22, 2017, appellant was charged

with one count of receiving stolen property, a felony of the fourth degree.

       {¶ 10} Appellant was released on bond and the trial court ordered him to submit to

supervision by pre-trial release. Appellant signed the terms and conditions of pre-trial

release which included the requirement that he be subject to random urine drug screens

(UDS). Wes Luce of the Licking County Felony Probation Services supervised appellant.

On February 1, 2018, appellant arrived at Luce's office for a scheduled appointment and

UDS. While Luce monitored appellant's UDS, instead of urinating into the test cup,

appellant removed a bottle containing someone else's urine from his pocket and poured

the urine into the test cup. Once caught, appellant admitted to using drugs two days prior.
Licking County, Case No. 18-CA-54                                                                5


       {¶ 11} In light of this development as well as developments regarding appellant's

pending charge for receiving stolen property, on March 29, 2018, the Licking County

Grand Jury returned a superseding indictment charging appellant with one count of

receiving stolen property, a felony of the fifth degree, and one count of tampering with

evidence, a felony of the third degree.

       {¶ 12} Appellant pled not guilty to these charges and elected to proceed to a jury

trial which took place on June 14, 2018. Before voir dire, the court indicated there had

been an off the record discussion regarding severance of the charges and that the court

would be inclined to deny a severance.

       {¶ 13} The state presented evidence from five witnesses pertaining only to

Shannon's stolen log splitter and trailer as well as the tampering with evidence charge.

Appellant testified on his own behalf. He testified that the trailer and log splitter were not

found on his property, but rather an adjacent property. He then testified, however, that he

has items on that adjacent property. Additionally, appellant stated Deputy Holmes

misunderstood him and that he had told her "this stinks of an insurance scam" not that it

was part of an insurance scam.

       {¶ 14} After retiring to deliberate, the jury asked to see the bill of sale for the trailer.

That item, however, had been excluded from evidence as it had not been properly

authenticated. A short time later, the jury found appellant guilty as charged. It further found

the value of the property in question for the receiving stolen property charge was greater

than $1000 but less than $7500. Appellant was subsequently sentenced to one year for

receiving stolen property, and three years for tampering with evidence. The trial court

ordered appellant to serve the sentences consecutively.
Licking County, Case No. 18-CA-54                                                6


      {¶ 15} Appellant filed an appeal, and the matter is now before this court for

consideration. He raises six assignments of error as follow:

                                                I

      {¶ 16} "THE TRIAL COURT ERRED BY NOT HOLDING SEPARATE TRIALS ON

DYE'S CHARGES OF TAMPERING WITH EVIDENCE AND RECEIVING STOLEN

POPERTY, IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY

THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTUTION"




                                               II

      {¶ 17} "THE TRIAL COURT PLAINLY ERRED BY FAILING TO INSTRUCT THE

JURY THAT IT MUST UNANIMOUSLY AGREE ON THE SAME SPECIFIC INCIDENT

OF RECEIVING STOLEN PROPERTY ALLEGED IN THE SINGLE COUNT IN THE

INDICTMENT AGAINST CHETER DYE, IN VIOLATION OF HIS RIGHTS TO DUE

PROCESS OF LAW, A FAIR TRIAL, JURY UNANIMITY, AND THE DOUBLE

JEOPARDY PROTECTIONS PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION."

                                               III

      {¶ 18} "DYE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
Licking County, Case No. 18-CA-54                                                            7


                                                   IV

        {¶ 19} DYE'S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16,

ARTICLE I OF THE OHIO CONSTITUTION."

                                                   V

        {¶ 20} DYE'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION."

                                                   VI

        {¶ 21} THE TRIAL COURT UNLAWFULLY ORDERED DYE TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH     AND     FOURTEENTH         AMENDEMENTS           TO    THE     UNITED      STATES

CONSTITUTION."

        {¶ 22} For ease of discussion, we address some of appellant's assignments of

error out of order as well as together.

                                               I

        {¶ 23} In his first assignment of error, appellant argues the trial court erred when it

denied his motion to sever and hold separate trials. We disagree.

        {¶ 24} Crim.R. 8(A) governs joinder of offenses and states offenses may be joined

if they are of the same or similar character, are based on the same act or transaction, or
Licking County, Case No. 18-CA-54                                                      8


are based on two or more acts or transactions connected together or part of a common

scheme or course of criminal conduct. Joinder is liberally permitted to conserve judicial

resources, reduce the chance of incongruous results in successive trials, and diminish

inconvenience to witnesses. See, State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d

1288 (1981). Joinder is appropriate where the evidence is interlocking and the jury can

easily segregate the proof required for each offense. State v. Czajka, 101 Ohio App.3d

564, 577–578, 656 N.E.2d 9 (8th Dist. Cuyahoga 1995).

       {¶ 25} A defendant may move to sever the charges pursuant to Crim.R. 14. In such

a motion, the defendant bears the burden to show his rights would be prejudiced by

joinder. State v. Strobel, 51 Ohio App.3d 31, 33, 554 N.E.2d 916 (3rd Dist. Henry 1988).

       {¶ 26} We note appellant made no written motion to sever the offenses set forth in

the March 29, 2018 superseding indictment. Further, there is no record of any oral motion

by appellant, nor of any discussion of the matter at the June 14, 2018 trial or any time

before. The sole reference to severance appears on page 84 of the trial transcript and is

as follows:



              The Court: Okay. We also had also talked before the trial about Mr.

              Barth had asked about the possibility of separating the charges for

              trial and I had represented that one of the considerations the Court

              looks at under that circumstance was whether or not the charges

              would cause confusion with the jurors, and in this case they're very

              separate and distinct, easy to distinguish and aren't going to cause

              confusion, and the fact that, you know, the witnesses are here,
Licking County, Case No. 18-CA-54                                                        9


              today's the day of trial and I would not look favorably on that today in

              all likelihood.

              Anything you wish to add to that Mr. Murphy?

              Mr. Murphy: No Your Honor.

              The Court: Mr. Barth?

              Mr. Barth: No sir.



       {¶ 27} Not only is there no motion in the record, there is no ruling made by the

court. Rather, the court merely indicated a favorable ruling would be unlikely. Because

there is not record of either a motion or a ruling, we must overrule appellant's first

assignment of error.

                                           IV, V

       {¶ 28} We address appellant's fourth and fifth assignments of error together. In

these assignments of error, appellant argues his convictions are against the manifest

weight and sufficiency of the evidence. We disagree.

       {¶ 29} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing

court is to examine the entire record, weigh the evidence and all reasonable inferences,
Licking County, Case No. 18-CA-54                                                       10


consider the credibility of witnesses and determine "whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction."

Martin at 175.

      {¶ 30} Appellant was indicted on one count of receiving stolen property, the value

of which was $1000 or more, but less than $7500. To support a conviction for receiving

stolen property, the state was required to produce evidence to show appellant received,

retained, or disposed of property of another knowing or having reasonable cause to

believe that the property has been obtained through commission of a theft offense. R.C.

2913.51(A).

      {¶ 31} During trial the state presented evidence pertaining to only two items; the

log splitter and the 15-foot trailer. The evidence produced demonstrated appellant was in

possession of Shannon's log splitter, which was appraised at between $1100 and $4000.

Shannon made the log splitter himself and welded his initials into the push plate of the

device. He and Larue drove by appellant's residence and spotted the splitter sitting in

appellant's front yard. Appellant initially told Deputy Holmes the log splitter belonged to

him, then at trial said he knew nothing about the splitter, other than it had been sitting

where it was found for 3 weeks. T.121-122, 128-130, 184, 213, 276.

      {¶ 32} Deputy Holmes testified that when Shannon's trailer was also found on

appellant's property, it was parked in front of a shed belonging to appellant. T. 214-215.
Licking County, Case No. 18-CA-54                                                          11


Appellant initially told Deputy Holmes he had purchased the trailer, but he could not

produce a name when asked from whom he had bought the trailer. T. 218-219. On the

day of trial, however, appellant produced a bill of sale which alleged he had purchased

the trailer from his girlfriend. The bill of sale, however, was for a shorter trailer. T. 220-

222. In any event, because the document was not properly authenticated, it was not

admitted in to evidence.

       {¶ 33} When Holmes later returned to appellant's property to execute the search

warrant, appellant changed his story and claimed the items in his possession were all part

of an insurance scam. Holmes followed up with Shannon's insurance company and found

no evidence of any claims filed by Shannon.

      {¶ 34} The state presented sufficient evidence to support a finding that appellant

committed the crime of receiving stolen property by unlawfully obtaining both items

belonging to Shannon, valued at more than $1000, but less than $7500, knowing or

having reasonable cause to believe they had been obtained through the commission of a

theft offense. Further, as outlined above, given appellant's evolving and inconsistent

explanations, the jury did not lose its way in believing the state's evidence over

appellant's. We find, therefore, his conviction for receiving stolen property is not against

the manifest weight of the evidence.

       {¶ 35} Next, appellant argues his conviction for tampering with evidence is against

the manifest weight and sufficiency of the evidence. Specifically, appellant argues that he

because he did not actually follow through with his intention to substitute someone else's

urine for his own, that he can only be guilty of attempted tampering with evidence. We

disagree.
Licking County, Case No. 18-CA-54                                                       12


       {¶ 36} First, counsel for appellant never requested a jury instruction for attempt,

and never advanced this theory at trial. He therefore forfeits all but plain error here on

appeal. Appellant here claims he never actually dumped the urine he brought with him in

a bottle, into the test cup. A review of the record reveals otherwise. At page 195 of the

transcript, Luce described what happened while he was monitoring appellant's UDS:



              When he was preparing to give us a sample, I noticed his hand was

              going into the pocket of his sweatshirt, he had like a hooded

              sweatshirt on, and he pulled out the bottle that we have, a device

              with the cap unscrewed [referring to state's exhibit 9 a container

              confiscated from appellant during the UDS]. He then proceeded to

              empty an amount of liquid into the [test] cup, and then at that point

              we stopped – I saw it, I stopped the test.



       {¶ 37} We therefore find no error, plain or otherwise. There was sufficient evidence

produced by the state to support a conviction for tampering with evidence and the jury did

not lose its way in so convicting appellant.

       {¶ 38} The fourth and fifth assignments of error are overruled.

                                               II

       {¶ 39} In his next assignment of error, appellant argues the trial court erred when

it failed to instruct the jury that is must unanimously agree on each specific incident of

receiving stolen property alleged in the single count of the indictment. We disagree.
Licking County, Case No. 18-CA-54                                                           13


       {¶ 40} Crim.R. 30 governs instructions. Subsection (A) states the following in

relevant part: “On appeal, a party may not assign as error the giving or the failure to give

any instructions unless the party objects before the jury retires to consider its verdict,

stating specifically the matter objected to and the grounds of the objection. Opportunity

shall be given to make the objection out of the hearing of the jury.”

       {¶ 41} Counsel for appellant did not object to the jury instructions at trial and

concedes that we review this assignment of error for plain error.

       {¶ 42} An error not raised in the trial court must be plain error for an appellate court

to reverse. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B). As

part of the inquiry into whether plain error occurred, a reviewing court “must examine the

error asserted by the [defendant] in light of all of the evidence properly admitted at trial

and determine whether the jury would have convicted the defendant even if the error had

not occurred.” State v. Slagle, 65 Ohio St.3d 597, 605, 605 N.E.2d 916, (1992). Appellant

bears the burden of demonstrating that the outcome of the trial clearly would have been

different but for the error. Long. at paragraph two of the syllabus. Notice of plain error “is

to be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

       {¶ 43} "When a court of appeals engages in a plain-error analysis, it must conduct

a complete review of all relevant assignments of error in order to determine whether a

manifest miscarriage of justice has occurred that clearly affected the outcome of the trial."

State v. Hill, 92 Ohio St.3d 191, 2001-Ohio-141, 749 N.E.2d 274 at syllabus.

       {¶ 44} As addressed in the fourth and fifth assignments of error above, appellant's

conviction for receiving stolen property is supported by sufficient evidence as it pertains
Licking County, Case No. 18-CA-54                                                           14


to both the log splitter and the 15-foot trailer. Appellant cannot demonstrate, therefore,

that the outcome of his trial, would have been any different had the jury been required to

consider each item, save for appellant being convicted of two counts of receiving stolen

property instead of one.

       {¶ 45} The second assignment of error is overruled.

                                              III

       {¶ 46} In his third assignment of error, appellant argues his counsel rendered

ineffective assistance by failing to request a jury instruction regarding appellant's own

testimony as to his prior criminal history, and further, by failing to object to the imposition

of court costs at the time of sentencing. We disagree.

       {¶ 47} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.” Strickland

at 694, 104 S.Ct. 2052.

       {¶ 48} Even if failing to request a limiting instruction as to appellant's prior record

could somehow be construed as deficient performance, appellant still cannot satisfy the

second Strickland prong. As discussed at length above, sufficient, credible evidence was
Licking County, Case No. 18-CA-54                                                         15


produced to support appellant's convictions. Appellant therefore cannot demonstrate

prejudice.

       {¶ 49} Appellant's court costs argument is also without merit. A defendant may

seek waiver of court costs with the trial court at any time, including after sentencing. R.C

2947.23(C). Appellant has therefore suffered no prejudice. State v. Davis, 5th Dist.

Licking No. 17CA55, 2017-Ohio-9445 ¶ 27.

       {¶ 50} The third assignment of error is overruled.

                                             VI

       {¶ 51} Appellant's final assignment of error argues the trial court failed to make the

appropriate findings on the record before imposing consecutive sentences. The state

concedes this fact. We therefore grant appellant's final assignment of error, vacate his

sentence and remand the matter to the trial court for resentencing.

       {¶ 52} The sixth assignment of error is granted.
Licking County, Case No. 18-CA-54                                                      16


      {¶ 53} The judgment of conviction of the Licking County Court of Common Pleas

is affirmed. Appellant's sentence is vacated, and the matter is remanded for resentencing.




By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




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