[Cite as State v. Nuzum, 2016-Ohio-2744.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                         Court of Appeals No. L-15-1122

        Appellee                                      Trial Court No. CR0201501161

v.

William Nuzum                                         DECISION AND JUDGMENT

        Appellant                                     Decided: April 29, 2016

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Patricia Horner, for appellant.

                                               *****

        YARBROUGH, J.

                                            I. Introduction

        {¶ 1} Appellant, William Nuzum, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to six years in prison following a jury trial in which he

was found guilty of burglary. We affirm.
                         A. Facts and Procedural Background

       {¶ 2} This case involves a burglary that occurred on January 2, 2015. At

approximately 6 a.m. on that morning, Donald and Noralee County, the occupants of a

residence located in Toledo, were awoken by a loud sound coming from the first floor of

the residence. They were asleep in an upstairs bedroom at the time. Before retiring to

bed on the night before the burglary, the Countys turned on several lights in the house,

including the light in the upstairs hallway and another in the upstairs bedroom, which was

located across the hall from their bedroom.

       {¶ 3} Arising from bed, the Countys noticed a shadow passing along their

bedroom door, presumably caused by the burglar passing through the light emitted from

the hallway and bathroom lights. Donald proceeded from the bedroom to investigate the

matter further. Donald entered the upstairs bathroom, where he found a man whom he

later identified as appellant. Donald ordered appellant out of the bathroom, and a tussle

ensued as appellant attempted to escape down the stairway. Meanwhile, Noralee picked

up her cell phone and dialed 911. Noralee also identified appellant as the man she saw

that morning in her home, noting that his face was not covered and the lights “totally”

illuminated the area where he was located.

       {¶ 4} After appellant escaped from the residence, Donald walked downstairs and

discovered that a glass window on the side entry door to the home was shattered.

Eventually, police arrived on the scene. The responding officer initially characterized the




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matter as criminal damaging based upon the damage done to the entry door window.

However, upon further investigation, the charge was changed to aggravated burglary.

       {¶ 5} Several hours after the burglary, detectives returned to the residence to

administer a photo array in an effort to identify the burglar. According to the detective

who administered the photo array, Donald selected appellant’s photograph without

hesitation, stating “I’m positive that’s it.” Likewise, Noralee subsequently selected

appellant’s photograph when she was shown the same photo array.

       {¶ 6} As a result of the foregoing, appellant was indicted on one count of

aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree.

Following a jury trial, appellant was found not guilty of aggravated burglary, but guilty of

the lesser included offense of burglary in violation of R.C. 2911.12(A)(1), a felony of the

second degree. At sentencing, appellant was ordered to serve six years in prison, and the

trial court imposed an additional three-year term of post release control. Appellant

subsequently filed a timely notice of appeal.

                                B. Assignments of Error

       {¶ 7} On appeal, appellant presents the following assignments of error for our

review:

              I. Appellant’s conviction was against the manifest weight of the

       evidence.

              II. The trial court committed reversible error in admitting irrelevant

       testimony in violation of [Evid.R. 404(B)].




3.
             III. The state failed to comply with 404(B) notice requirement.

             IV. Appellant received ineffective assistance of counsel.

                                      II. Analysis

                                  A. Manifest Weight

      {¶ 8} In his first assignment of error, appellant argues that his conviction was

against the manifest weight of the evidence. When reviewing a manifest weight claim,

             The court, reviewing the entire record, weighs the evidence and all

      reasonable inferences, considers the credibility of witnesses and determines

      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. The discretionary power to grant a

      new trial should be exercised only in the exceptional case in which the

      evidence weighs heavily against the conviction. State v. Lang, 129 Ohio

      St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220.

      {¶ 9} Here, appellant was convicted of burglary in violation of R.C.

2911.12(A)(1), which provides:

             (A) No person, by force, stealth, or deception, shall do any of the

      following:

             (1) Trespass in an occupied structure or in a separately secured or

      separately occupied portion of an occupied structure, when another person

      other than an accomplice of the offender is present, with purpose to commit




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       in the structure or in the separately secured or separately occupied portion

       of the structure any criminal offense;

       {¶ 10} In his brief to this court, appellant does not contest the state’s evidence

concerning the fact that a burglary occurred at the Countys’ residence on the morning of

January 2, 2015. However, appellant insists that the weight of the evidence demonstrates

that he was not the individual that committed the burglary. Specifically, appellant argues

that Donald could not have ascertained the burglar’s identity during his tussle with the

burglar because the bathroom light, which was located behind the burglar as he was

exiting the bathroom, would have caused his face to be silhouetted.

       {¶ 11} Having considered the record in its entirety, we find no merit to appellant’s

manifest weight argument. Appellant’s argument ignores the identification testimony

offered by Noralee, who observed appellant and Donald as they were struggling together.

At trial, Noralee testified that appellant was the individual who burglarized her home.

When asked whether she was certain as to her identification of appellant as the burglar,

Noralee stated that she was “100 percent sure.” Further, appellant’s argument lacks

credibility in light of Donald’s testimony that he was face-to-face with appellant for

several seconds as he tried to hold appellant during the struggle.1 When provided with a




1
  Appellant also challenges Donald’s ability to identify the burglar on the basis that he
was not wearing his prescription glasses during the struggle with the burglar. While the
record is unclear as to the extent of Donald’s vision impairment, the testimony that was
provided established that Donald was able to see well enough to pass his driver’s license
examination without corrective lenses.



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photo array, both Donald and Noralee independently identified appellant as the burglar

within hours of the burglary.

       {¶ 12} In light of the foregoing uncontroverted evidence establishing appellant as

the burglar in this case, we do not find that this is the exceptional case warranting

reversal on manifest weight grounds. Accordingly, appellant’s first assignment of error is

not well-taken.

                                B. Evid.R. 404(B) Concerns

       {¶ 13} In his second assignment of error, appellant argues that the trial court erred

in admitting irrelevant other acts evidence in violation of Evid.R. 404(B). The specific

testimony to which appellant objects took place during the state’s direct examination of

Donald. When asked whether he had ever met appellant prior to the burglary, Donald

responded in the affirmative, and the following discussion ensued:

              Q. When?

              A. On December the 25th, at 10:45 in the morning, Noralee had

       taken the dinner – a Christmas dinner to Jeremy who has moved away and

       she was sort of taking care of him or whatever. She took a dinner to him.

       And I was home alone when there was a knock on the door, which seemed

       unusual.

              Q. This is Christmas day?

              A. Yes, Christmas day.

              Q. Okay. Knock on the door, and what happens?




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              A. and I went to the door, and that individual who identified himself

       as Johnson tried to sell me some unpackaged items. Obvious – to me, I

       thought these were, you know, stolen.

       {¶ 14} For purposes of our analysis of appellant’s second assignment of error, we

will assume, without deciding, that the above-referenced testimony contains other acts

evidence under Evid.R. 404(B). Concerning the admission of such evidence, Evid.R.

404(B) provides:

              (B) Other Crimes, Wrongs or Acts. Evidence of other crimes,

       wrongs, or acts is not admissible to prove the character of a person in order

       to show action in conformity therewith. It may, however, be admissible for

       other purposes, such as proof of motive, opportunity, intent, preparation,

       plan, knowledge, identity, or absence of mistake or accident. In criminal

       cases, the proponent of evidence to be offered under this rule shall provide

       reasonable notice in advance of trial, or during trial if the court excuses

       pretrial notice on good cause shown, of the general nature of any such

       evidence it intends to introduce at trial.

       {¶ 15} Later in Donald’s testimony, he indicated that he had also seen appellant at

a neighbor’s house in 2012. While discussing this encounter, Donald mentioned that

police were also present at the neighbor’s house where he saw appellant.

       {¶ 16} In this case, defense counsel failed to object to Donald’s alleged other acts

testimony. The failure to object to testimony at trial waives all but plain error. State v.




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Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph one of the syllabus. On

appeal, plain error will be found only if the reviewing court, after examining all of the

relevant evidence that was properly admitted at trial, determines that an error occurred

and that, “but for [such] error, the outcome of the trial clearly would have been

otherwise.” Id. at paragraph two of the syllabus. Pursuant to Crim.R. 52(B), 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.

       {¶ 17} Having considered the evidence provided by the state at trial, we do not

find that the absence of Donald’s other acts testimony would have changed the outcome

of this case. Indeed, the sole issue in this case, namely the identity of the burglar, was

addressed several times throughout the state’s case-in-chief. In particular, Donald and

Noralee independently identified appellant as the burglar when shown a photo array that

included his photograph. Further, they identified appellant as the burglar again at trial.

Appellant offered no evidence to rebut this identification testimony.

       {¶ 18} Because the outcome of the trial was not impacted by the alleged other acts

evidence, we conclude that the trial court did not commit plain error in its admission of

such evidence. Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 19} In his third assignment of error, appellant urges that the state failed to

comply with the notice requirement set forth in Evid.R. 404(B) prior to admitting the

other acts evidence.




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       {¶ 20} Evid.R 404 was amended in 2012 to adopt a notice requirement. As noted

above, Evid.R. 404 now requires the proponent of such evidence to provide reasonable

notice “in advance of trial, or during trial if the court excuses pretrial notice on good

cause shown * * *.” Evid.R. 404(B). Following its amendment, the Ohio rule is now

similar to the federal rule, which requires reasonable notice of the general nature of any

such evidence in order to prevent unfair surprise. State v. Plevyak, 11th Dist. Trumbull

No. 2013-T-0051, 2014-Ohio-2889, ¶ 12.

       {¶ 21} In this case, the state did not provide appellant with notice of its intent to

use other acts evidence under Evid.R. 404(B). Thus, the state ran afoul of the notice

requirement in Evid.R. 404(B) to the extent that certain portions of Donald’s testimony

could be said to include other acts evidence. However, any such error was harmless in

light of our conclusion that the state’s alleged introduction of other acts evidence did not

affect the outcome of the trial or otherwise prejudice appellant. Consequently, such error

must be disregarded. Crim.R. 52(A). Accordingly, appellant’s third assignment of error

is not well-taken.

                           C. Ineffective Assistance of Counsel

       {¶ 22} In his final assignment of error, appellant argues that his trial counsel was

ineffective for failing to make several objections at trial.

       {¶ 23} In order to demonstrate ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104




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S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel’s performance

fell below an objective standard of reasonableness, and a reasonable probability exists

that, but for counsel’s error, the result of the proceedings would have been different. Id.

at 687-688, 694.

       {¶ 24} Here, appellant contends that trial counsel was ineffective for failing to

object to the state’s introduction of the aforementioned other acts evidence. Appellant

also argues that trial counsel should have objected to testimony offered at trial by Noralee

in which she described a photo array as “a lineup of * * * potential people that might

have been in trouble and had their pictures taken.” Later, during cross examination,

Noralee characterized the photographs shown to her during the photo array as

“mugshots.”

       {¶ 25} Having already concluded that the trial court’s admission of alleged other

acts evidence did not alter the outcome of this case, we find that appellant has not

established that he was prejudiced by his counsel’s failure to object to such evidence.

       {¶ 26} Turning to Noralee’s testimony, we note that trial counsel effectively cross-

examined Noralee on the photo array issue, resulting in her acknowledgement that the

individuals shown in the photo array “could be innocent people for all I know.” Given

this clarification, we find that appellant received effective assistance of trial counsel.

Accordingly, appellant’s fourth assignment of error is not well-taken.




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                                     III. Conclusion

       {¶ 27} The judgment of the Lucas County Court of Common Pleas is affirmed.

Costs are hereby assessed to appellant in accordance with 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.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           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.sconet.state.oh.us/rod/newpdf/?source=6.




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