[Cite as State v. Collins, 2012-Ohio-2450.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee      :      Hon. William B. Hoffman, J.
                                               :      Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :      Case No. 11CAA070064
JONATHON W. COLLINS                            :
                                               :
                                               :
                      Defendant-Appellant      :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Delaware County Court of
                                                   Common Pleas, Case No. 10CRI020117B


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            May 23, 2012



APPEARANCES:

For Joseph Collins:                                   For Appellee:

WILLIAM T. CRAMER                                     CAROL HAMILTON O’BRIEN
470 Olde Worthington Rd., Ste. 200                    DELAWARE CO. PROSECUTOR
Westerville, OH 43082                                 BRIAN J. WALTER
                                                      140 North Sandusky St., 3rd Floor
                                                      Delaware, OH 43015
[Cite as State v. Collins, 2012-Ohio-2450.]


Delaney, J.

        {¶1} Appellant Jonathon Collins appeals from the judgment entry of conviction

and sentence entered in the Delaware County Court of Common Pleas on June 30,

2011. Appellee is the State of Ohio.

                               FACTS AND PROCEDURAL HISTORY

        {¶2} This appeal is related to State v. Joseph Collins, Case Number

11CAA090082. Joseph Collins and appellant are father and son, respectively, and co-

defendants.

                                        The Van and its Contents

        {¶3} This case arose on June 20, 2009, at 4:56 a.m. Officer James Ailes of

the Delaware Police Department was on routine patrol when he noticed a red minivan

parked at the side of the road at the intersection of Hull Drive and Liberty Road,

Delaware.       Four males were outside the van; one stood on the driver’s side near the

door, and three stood near the rear passenger door. Ailes could not see what they

were doing but found the activity to be unusual for the hour.

        {¶4} Ailes pulled up to the van and made contact with the driver, identified as

Shane Copelan. Copelan said he was tired and had wanted to pull over and stop.

Ailes radioed his location to dispatch and started to get out of his cruiser. As he got

out, Copelan walked around to the rear of the van where the other three males stood.

Ailes noticed a set of red bolt cutters on the roadway under the rear hatch of the van.

        {¶5} Ailes requested backup and asked the individuals to sit on the ground.

The four were identified as Copelan, Joseph Collins, appellant, and his brother Jason

Collins.
Delaware County, Case No. 11CAA070064                                                3


      {¶6} Trooper Glasscox drove by as Ailes spoke with the individuals and

stopped to offer assistance.

      {¶7} Ailes and Glasscox investigated the scene.           Dispatch advised Ailes

appellant had an active arrest warrant and he was taken into custody. Ailes noticed a

piece of copper wire lying in the grassy area between the sidewalk and the roadway,

next to the van. Glasscox walked around the outside of the van and in plain view

observed a large amount of cut copper in the back of the van.

      {¶8} The van was later inventoried and found to contain four sections of cut

copper, a 25-foot piece of braided copper, and miscellaneous pieces of fencing, small

copper pieces, clamps, and trash.       The four cut sections of copper were each

approximately four feet long. The 25-foot piece of braided copper was covered in dirt

and debris as though it had been buried in the ground.      All of these items, and the

red bolt cutters, were photographed.

      {¶9} Police learned Shane Copelan’s girlfriend Jennifer Fleming owned the

van. Fleming came to the property storage lot and retrieved it. Initially no charges

were filed and the copper was tagged and placed into evidence.

      {¶10} Joseph Collins was the only participant who offered any information

about the source of the copper.     He claimed some of it came from a burnt-down

grocery store in Columbus and some of it came from his aunt’s barn in Lancaster.

Joseph Collins further stated appellant and Jason Collins were with him when he

obtained the copper, but Shane Copelan was not.

      {¶11} Ailes contacted surrounding law enforcement agencies and railroads in

an attempt to discover the source of the copper, with no results.
Delaware County, Case No. 11CAA070064                                              4

                           The Fire at the AEP Substation

      {¶12} When Ailes came upon the Copelan/Collins stop, they were one-tenth of

a mile from an American Electric Power (AEP) substation located at 1738 Liberty

Road, Delaware.

      {¶13} Less than a day later, at midnight on June 21, 2009, Ailes responded to

a fire at the Liberty Road AEP substation. Ailes worked traffic at the fire because

Liberty Road had to be closed.

      {¶14} At 2:43 a.m., Ailes returned to the Liberty Road AEP substation for a

report of breaking and entering. Technicians had investigated the fire and discovered

evidence of a break-in, including a gate which had been cut and missing copper

“grounds.”

      {¶15} Ailes responded and noticed the bolt on the gate appeared to have been

cut with bolt cutters. He also observed an area of dirt where cable had been pulled

out of the ground.

      {¶16} Ailes immediately suspected the break-in and fire were related to the

Copelan/Collins stop. He brought an AEP technician to the evidence room to view the

copper recovered from the minivan. Ailes and the technician were able to line up the

cut sections of copper recovered from the van with the missing portions stolen from

the Liberty Road substation.

      {¶17} Ailes met with Copelan and told him about the AEP substation break-in.

Copelan now told him he had dropped off the Collinses around the intersection of Hull

and Liberty. Soon after, they called him to come pick them up and now they had the

copper with them.
Delaware County, Case No. 11CAA070064                                                5


       {¶18} Jay Davis is a servicer of AEP substations and testified for the state at

trial. Davis investigated the fire on June 21, 2009; when he arrived, he found one

regulator was on fire. He de-energized the circuits and put the fire out.

       {¶19} Davis looked for the cause of the fire and discovered several “grounds”

had been cut and removed. “Grounds” are made of copper wire and function to return

power. Removal of the ground wires may not immediately cause a fire, but eventually

fire will result. Davis opined the fire was caused by the cutting and removal of the

ground wires.

       {¶20} At the time of these events, there had been many similar copper thefts

from AEP substations. Two AEP witnesses noted the thefts commonly involved the

same wires: those in locations thieves could easily access.

       {¶21} AEP substation supervisor Michael Coffey also testified at trial. Coffey

was responsible for investigating the damage at the Liberty Road substation and for

setting up a work order to track the necessary repairs. Coffey noted because of the

theft, a power outage lasting approximately 23 minutes occurred and a circuit had to

be removed from service. The fire and resulting repair operations created at least one

outage for AEP customers in 270 households.

       {¶22} Coffey agreed the fire started because it “lost its grounds;” removing the

copper grounds created a heating effect which began to smolder and eventually

resulted in a fire.

       {¶23} Although Coffey did not factor the AEP customers’ power outage into the

cost of the theft, he was able to calculate the amount of the loss to AEP based upon

replacement materials and labor. The total cost was $8,010.32.
Delaware County, Case No. 11CAA070064                                                  6

                       Criminal Charges and Two Bench Trials

      {¶24} Copelan, Joseph Collins, Jason Collins and appellant were each charged

by indictment with one count of vandalism in an amount greater than $5000 but less

than $100,000, a felony of the fourth degree [R.C. 2909.05(B)(1)(b)], one count of

possession of criminal tools [R.C. 2923.24(A)], one count of theft in an amount greater

than $500 but less than $5000, a felony of the fifth degree [R.C. 2923.24(A)], one

count of breaking and entering, a felony of the fifth degree [R.C. 2911.13(B)], one

count of disrupting public service, and one count of receiving stolen property in an

amount greater than $500 but less than $5000, a felony of the fifth degree [R.C.

2913.51(A)].

      {¶25} Copelan ultimately entered pleas of guilty on October 8, 2010, and was

sentenced on January 24, 2011.

      {¶26} Jason Collins’ case was transferred to a visiting judge, who presided

over a bench trial and acquitted Jason Collins of all charges on January 6, 2011.

      {¶27} On January 18, 2011, Joseph Collins and appellant moved to dismiss

their indictments, arguing the state had fully litigated the case in Jason Collins’ trial

and was therefore precluded from trying the remaining co-defendants in a separate

trial. They argued further prosecution was barred by collateral estoppel and double

jeopardy.

      {¶28} The trial court overruled the motion to dismiss, noting neither appellant,

nor Joseph Collins, nor the state had moved to sever the trials; appellant never

asserted that he should have been tried with Jason Collins; and the co-defendants

never objected to the “de facto severance” of the trials.      The trial court ruled the
Delaware County, Case No. 11CAA070064                                                 7


findings in Jason Collins’ trial were specific to Jason Collins, and subsequent trial of

appellant and Joseph Collins was not barred by collateral estoppel, res judicata, or

double jeopardy.

      {¶29} Appellant and Joseph Collins each waived his right to trial by jury, and

the matters proceeded to a joint bench trial on April 27, 2011. Both were found guilty

as charged on each count of the indictment, with the exception of Count Five,

disrupting public services, for which each was found not guilty.

      {¶30} The trial court found that Counts One, Three, and Six (vandalism, theft,

and receiving stolen property) merged for purposes of sentencing, and appellee

elected to sentence on Count One, vandalism.         Appellant received an aggregate

sentence of three years on community control. He was also ordered to pay restitution.

      {¶31} Appellant appeals from the judgment entries of conviction and sentence.

      {¶32} Appellant raises one Assignment of Error:

      {¶33} “I.    THE TRIAL COURT VIOLATED APPELLANT’S STATE AND

FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND APPELLANT’S

RIGHT TO BE TRIED TOGETHER WITH HIS JOINTLY INDICTED CODEFENDANTS

UNDER R.C. 2945.13 AND CRIM. R. 14, BY ALLOWING APPELLANT’S CASE TO

GO TO TRIAL AFTER A CODEFENDANT HAD ALREADY BEEN SEPARATELY

TRIED AND ACQUITTED OF ALL CHARGES.”
Delaware County, Case No. 11CAA070064                                                       8



                                              I.

       {¶34} Appellant argues in his sole assignment of error his trial was barred by

the fact that codefendant Jason Collins was tried separately and acquitted.1              We

disagree.

       {¶35} First, we note neither appellant nor counsel objected to the separate trial

of co-defendant Jason Collins until after Jason Collins was tried and acquitted. We

therefore review this claim under a plain error standard of review. See, State v. Dunn,

5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, ¶ 89.             Pursuant to Crim.R. 52(B),

“[p]lain errors or defects affecting substantial rights may be noticed although they were

not brought to the attention of the court.” The rule places several limitations on a

reviewing court’s determination to correct an error despite the absence of a timely

objection at trial: (1) “there must be an error, i.e. a deviation from a legal rule,” (2) “the

error must be plain,” that is, an error that constitutes an “obvious defect in the trial

proceeding,” and (3) the error must have affected “substantial rights” such that “the

trial court’s error must have affected the outcome of the trial.” State v. Morales, 10

Dist. Nos. 03—AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19, quoting State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v. Gross, 97 Ohio St.3d 121,

2002-Ohio-5524, 776 N.E.2d 1061, ¶ 45.             The decision to correct a plain error is

discretionary and should be made “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Barnes, supra,




1
 This is the same argument raised in his father’s first assignment of error in case
number 11CAA090082.
Delaware County, Case No. 11CAA070064                                                     9

quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of

the syllabus.

       {¶36} R.C. 2945.13 states, “When two or more persons are jointly indicted for a

felony, except a capital offense, they shall be tried jointly unless the court, for good

cause shown on application therefor by the prosecuting attorney or one or more of

said defendants, orders one or more of said defendants to be tried separately.”

       {¶37} Crim.R. 8(B) provides that two or more defendants may be charged in

the same indictment if they are alleged to have participated in the same series of acts

constituting an offense, or in the same course of criminal conduct. The joinder of

defendants and the avoidance of multiple trials are favored in the law because joinder

“conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of

multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of

incongruous results in successive trials before different juries.” State v. Thomas, 61

Ohio St.2d 223, 225, 400 N.E.2d 401 (1980).

       {¶38} We note there was no application by a party to try the cases separately.

The Supreme Court of Ohio assigned a visiting judge to hear 10CR-I-02-0117(C),

State of Ohio v. Jason A. Collins. While the record leading to this assignment is not

before us, in its entry overruling appellant’s motion to dismiss, the trial court

referenced “a standing objection the State of Ohio has raised regarding this court

hearing cases in which [trial counsel of Jason Collins] is representing a defendant.”

Due to a conflict of interest alleged by appellee, therefore, the trial court recused itself

from the Jason Collins case.
Delaware County, Case No. 11CAA070064                                                10


       {¶39} Whether an accused shall be tried separately from a co-defendant is a

matter within the sound discretion of the trial court. State v. Torres, 66 Ohio St.2d

340, 343, 421 N.E.2d 1288 (1981). Generally, the burden is upon the defendant to

show good cause why a separate trial should be granted and that the trial court

abused its discretion in refusing to do so.         State v. Jacocks, 5th Dist. No.

2002CA00359, 2003-Ohio-6839, ¶ 92, appeal not allowed, 102 Ohio St.3d 1445,

2004-Ohio-2263, 808 N.E.2d 397.       A defendant claiming error in the trial court’s

refusal to sever offenses or defendants has the burden of affirmatively showing that

his rights were prejudiced by the joinder.          State v. Vargas, 5th Dist. No.

2001CA00044, 2002-Ohio-2478, citing Torres, supra.

       {¶40} Appellant essentially argues for an extension of R.C. 2945.13 and

Crim.R. 8: all three codefendants should have been tried together, and because one

co-defendant was tried separately, first, trial of the remaining co-defendants is barred

altogether. Appellant presents no case authority supporting such an extension, and

more significantly, failed to raise this argument until after the first co-defendant had

already been tried and acquitted.

       {¶41} The record fails to disclose error, plain or otherwise. The trial court did

not deviate from a legal rule in recusing itself from one co-defendant’s case and trying

the remaining two in a joint trial.
Delaware County, Case No. 11CAA070064                                            11




      {¶42} Appellant’s sole assignment of error is overruled.   The judgment of the

Delaware County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. WILLIAM B. HOFFMAN



                                      HON. SHEILA G. FARMER




PAD:kgb
[Cite as State v. Collins, 2012-Ohio-2450.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                                                :
                        Plaintiff-Appellee      :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
JONATHON W. COLLINS                             :
                                                :
                                                :   Case No. 11CAA070064
                       Defendant-Appellant      :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to appellant.




                                              HON. PATRICIA A. DELANEY



                                              HON. WILLIAM B. HOFFMAN



                                              HON. SHEILA G. FARMER
