[Cite as State v. Liggans, 2014-Ohio-5465.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2014-A-0008
        - vs -                                  :

MAJERUS LIGGANS,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2012 CR 780.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, L.P.A., 34 South Chestnut
Street, Suite 100, Jefferson, OH 44047-1092 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Majerus Liggans, appeals from the judgment of the Ashtabula

County Court of Common Pleas, finding him guilty, after a jury trial, of burglary in

violation of R.C. 2911.12(A)(1), a felony of the second degree. Based on the following,

we affirm.

        {¶2}     Liggans and Melissa Zirkle were in an on-again, off-again relationship for

roughly 13 years and have one child together. They resided at 1317 Perryville Place in
Ashtabula from 2005 until June 2011, when their relationship terminated and Liggans

left the home. Ms. Zirkle remained at this address. At the time of the incident described

below, Liggans resided in Ashtabula with his fiancé and her children. Liggans and Ms.

Zirkle seldom communicated with each other, but they would sometimes communicate

concerning their child.

       {¶3}   On July 16, 2012, at approximately 12:00 a.m., Liggans was seen by one

of Ms. Zirkle’s neighbors, Renee Plott. Ms. Plott testified that while she was sitting on

her front porch, she observed Liggans park his vehicle down the road and run behind

neighborhood homes to Ms. Zirkle’s residence.         Ms. Plott stated she recognized

Liggans because she had watched him drive past her home several times throughout

the day. Ms. Plott testified that Liggans was wearing all black and was not carrying

anything while running through the backyards of the neighborhood. A short time later,

Ms. Plott watched as Ms. Zirkle returned home from work and opened her front door.

Ms. Plott heard Ms. Zirkle scream and run to her next door neighbor’s home. Ms. Plott

then witnessed Liggans running through the backyards from Ms. Zirkle’s home toward

his vehicle. At this time, Liggans was carrying a black bag.

       {¶4}   Ms. Zirkle testified that she returned home around 12:30 a.m. and saw

Liggans standing in her dining room, located across the front door. Ms. Zirkle yelled at

Liggans and then ran next door to call the police. After the police arrived and went

through her home, Ms. Zirkle went back into the home and informed the officer that

several items were missing. These items included: a safe under her bed containing

various papers and $500 cash, jewelry, an iPod Nano, and family heirlooms. Her son’s




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gaming system and games were later located in a pillowcase lying on her son’s

bedroom floor.

      {¶5}   The responding officer, Patrolman Erwin of the City of Ashtabula Police

Department, testified that, while searching the house, he noticed an access door

leading to the basement had been broken. Finding no intruder in the home, he retrieved

Ms. Zirkle and proceeded to walk through the house. At that time, they discovered

muddy footprints from the basement to the dining room, kitchen, and the upstairs

bedrooms. Patrolman Erwin took photographs of the footprints, which were lost due to

computer issues at the station.

      {¶6}   Liggans testified that although he was aware of the safe’s location under

the bed, he had given Ms. Zirkle his keys to the home in 2011 and was not there on the

night in question. Instead, Liggans stated he was at his residence on the computer

looking for dogs to purchase for breeding. He testified that he made a purchase online

that night via PayPal, but did not have the receipt on the day of his testimony. When

the court resumed the next day, Liggans offered the PayPal receipt as evidence to

demonstrate he was at home on the night of the incident; the trial court denied the

admission of said receipt.

      {¶7}   Liggans also stated his vehicle was not running properly at the time of the

incident and was riding a bicycle to get from place to place. This was corroborated by

his stepdaughter, Shaqualla Montgomery, who testified that she often had to drive him

places in her friend’s vehicle because his vehicle would not start. Ms. Montgomery

further stated that she would have known if Liggans had left their residence because




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she was sleeping on the couch at the time in question and he would have had to pass

her to exit their residence.

       {¶8}      Liggans testified that, through December 2012, he and Ms. Zirkle

continued their arranged visitation with their child and she did not make any remarks to

him about the incident. It was only when he went to the police station to make a report

on an unrelated matter that he was informed there was a warrant for his arrest. Of the

items that were taken from Ms. Zirkle’s home, Liggans commented that Ms. Zirkle never

kept money or valuables in the safe and he would not have taken the gaming system

away from his son. He also stated that he knew the basement doors were always

secured with two-by-fours, as they were when he lived at the home.

       {¶9}      Liggans was found guilty of burglary.      He was placed on community

control for a period of two years and ordered to make restitution in the amount of $700

to Ms. Zirkle.

       {¶10} Liggans filed a timely notice of appeal and has assigned the following

error for our review:

                 The trial court erred to the prejudice of the Appellant by refusing to
                 allow the Defendant’s proffer of evidence at trial, specifically
                 documents supporting his alibi, when his notice of alibi had been
                 timely filed, in violation of Rule 12.1 of the Ohio Rules of Criminal
                 Procedure and the Appellant’s rights under the sixth and fourteenth
                 amendments to the U.S. Constitution and Article I, Section 16 of the
                 Ohio Constitution.

       {¶11} On appeal, Liggans argues the court abused its discretion by not allowing

the admission of evidence that would have helped support his alibi.              Specifically,

Liggans argues the trial court’s denial of the PayPal statement is a violation of Crim.R.

12.1, which provides:




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              Whenever a defendant in a criminal case proposes to offer
              testimony to establish an alibi on his behalf, he shall, not less than
              seven days before trial, file and serve upon the prosecuting
              attorney a notice in writing of his intention to claim alibi. The notice
              shall include specific information as to the place at which the
              defendant claims to have been at the time of the alleged offense. If
              the defendant fails to file such written notice, the court may exclude
              evidence offered by the defendant for the purpose of proving such
              alibi, unless the court determines that in the interest of justice such
              evidence should be admitted.

       {¶12} When reviewing a trial court’s decision to exclude alibi evidence, an

appellate court must determine whether the trial court abused its discretion. State v.

Jamison, 49 Ohio St.3d 182, 189 (1990). The term “abuse of discretion” is one of art,

connoting judgment exercised by a court which neither comports with reason, nor the

record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).

       {¶13} In State v. Smith, 50 Ohio St.2d 51, 56 (1977), the Ohio Supreme Court

set forth three considerations for determining whether the trial court abused its

discretion in excluding alibi evidence: (1) Was the notice withheld from the prosecution

in bad faith? (2) Does the alibi evidence constitute surprise or otherwise prejudice the

prosecution? (3) Is the alibi evidence necessary to insure a fair trial for the defendant?

       {¶14} Here, although Liggans filed a notice of alibi, stating “[a]t the date and time

of the alleged offense, July 16, 2012, Defendant Liggans was at his home at 3413 Lake

Ave. Ashtabula, Ohio,” he had not considered producing the PayPal statement to aid in

his defense until he was cross-examined by the state. During his cross-examination,

Liggans testified that at the time of the incident, he was on the computer making a

payment “to a guy in Florida of $500 for a dog”; Liggans stated that he would make the

receipt available to the prosecution the next day. Liggans’ counsel indicated that he

was unaware of the receipt.



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       {¶15} The next day, Liggans’ counsel requested permission to re-call Liggans so

that proof of this transaction could be admitted. The state objected; the trial court

sustained the state’s objection.

       {¶16} In Smith, the Supreme Court of Ohio held the trial court abused its

discretion in excluding the appellant’s alibi testimony when the trial court prohibited the

testimony of three defense witnesses concerning the whereabouts of the defendant and

his girlfriend on the evening in question. Id. at 56. The Smith Court reasoned that the

admission of this testimony would not have surprised or prejudiced the prosecution and

that the exclusion of that testimony was sufficiently damaging to the appellant to

endanger his chances of obtaining a fair trial.     Id. at 55-56.   “Once the trial court

precluded the three defense witnesses from testifying concerning the whereabouts of

defendant * * * that evening, defendant and his girlfriend were reduced to testifying that

they were not at the sale without being allowed to explain where they were.” Id. at 56.

       {¶17} In the case sub judice, Liggans provided the state with a notice of alibi and

testified concerning his whereabouts on the evening in question. During his testimony,

Liggans indicated he had bought a dog via PayPal that evening, but failed to provide the

PayPal statement until the second day of trial. Even if the trial court had admitted such

evidence, it is not specific enough to support Liggans’ alibi. The statement would have

only demonstrated activity on Liggans’ PayPal account on July 17, 2012, the day after

the burglary. Further, the PayPal statement does not indicate the precise time this

payment was made. Unlike Smith, we fail to see how the PayPal statement would have

made a difference as to the outcome of the trial. The state was clearly prejudiced by

not having the ability to gather information to rebut Liggans’ contention that the PayPal




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receipt was generated at the time the burglary was committed. The jury heard the

testimony of Ms. Zirkle, the victim; the attending officer; the victim’s neighbor, Ms. Plott;

appellant’s stepdaughter; and appellant. The admission of the PayPal statement under

the facts at issue was not necessary to ensure appellant a fair trial.

       {¶18} Based on the opinion of this court, the judgment of the Ashtabula County

Court of Common Pleas is hereby affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.

concur.




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