[Cite as State v. Burns, 2011-Ohio-5926.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
THE STATE OF OHIO,                             :   W. Scott Gwin, P.J.
                                               :   Sheila G. Farmer, J.
                                   Appellee,   :   Julie A. Edwards, J.
                                               :
v.                                             :   Case No. 10CA130
                                               :
                                               :
ARLIE BURNS,                                   :   OPINION

                                  Appellant.




CHARACTER OF PROCEEDING:                            Criminal Appeal from Richland
                                                    County Court of Common Pleas Case
                                                    No. 2010CR421D

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             November 14, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAMES J. MAYER, JR.                                 WILLIAM C. FITHIAN, III
Prosecuting Attorney                                111 North Main Street
Richland County, Ohio                               Mansfield, Ohio 44902

BY: DANIEL J. BENOIT
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. Burns, 2011-Ohio-5926.]


Edwards, J.

        {¶ 1} Defendant-appellant, Arlie Burns, appeals his conviction and sentence

from the Richland County Court of Common Pleas on one count of aggravated burglary.

Plaintiff-appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶ 2} On July 9, 2010, the Richland County Grand Jury indicted appellant on

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

degree. At his arraignment on July 27, 2010, appellant entered a plea of not guilty to the

charge.

        {¶ 3} Subsequently, a jury trial commenced on October 14, 2010. The following

testimony was adduced at trial.

        {¶ 4} On January 10, 2010 at approximately 9:30 p.m., Tyler Ward, his

girlfriend, Robyn Debiew, and her year and a half old nephew went out to dinner. After

they returned from dinner, they were in a bedroom in Ward’s apartment at 137

Lexington Avenue in Richland County when they heard the main door open. When

Ward walked into the living room, he found two guys, one wearing a bandanna and the

other wearing a stocking hat. The two men, who attacked him, were trying to steal

Ward’s TV. Ward testified that he began screaming at the men and telling them to leave

and that the two men continued attacking him. According to Ward, “they had me on the

ground and was beating me, kicking me, punching me…” Transcript at 46.

        {¶ 5} Ward testified that the man in the bandanna was stocky, weighed

approximately 250 to 300 pounds and was of mixed race while the other man was a

taller, skinny white male. While the white male had Ward pinned to the ground in the
Richland County App. Case No. 10CA130                                                   3


hallway, the other male ran into the bedroom where Debiew and her nephew were

located and shoved Debiew to the ground. Debiew was able to pull the brown hat off of

the man’s head. The mixed race male then began going through Ward’s drawers and

took $200.00 to $300.00 in cash that was in a dresser drawer. The two men then

proceeded out the door and out into the back alley.

      {¶ 6} The police collected the brown Carhartt stocking-type cap that had been

left at the scene. Ward testified that he later received a telephone call from someone

named “Johnny” providing him with the name J.R. or Arlie Burns as a possible suspect

and that he relayed such information to the police. At trial, Ward identified appellant as

the short, stocky, mixed-race male who had entered his apartment and testified that he

was 100% sure that appellant was one of the burglars. Ward picked Neil Copeland out

of a photo array as one of the men involved in the burglary of his apartment.

      {¶ 7} On cross-examination, Ward testified that appellant had a bandanna and

hat on and that he could see appellant’s mouth, nose, eyes, and facial hair.

      {¶ 8} At trial, Robyn Debiew testified that the man who pushed her down was

mixed-race and was shorter than the white male. She was able to see the man’s eyes

and eyebrows and sideburns and identified appellant as being involved in the burglary.

She testified that appellant fit the description of the man who pushed her down because

he had sideburns and the same type of skin and hair and was the same weight and

height.

      {¶ 9} Testimony was adduced at trial that DNA obtained from the hat recovered

from the scene was from Neil Copeland. At trial, Copeland testified that he knew

appellant and that appellant also went by the name “JR”. Copeland further testified that,
Richland County App. Case No. 10CA130                                                  4


on January 3, 2010, he went with appellant to a residence on Lexington Avenue.

Copeland testified that he was the driver on such date. According to Copeland, on

January 10, 2010, the two of them went to the same address to get money or drugs and

that it was appellant’s idea. Copeland testified that when they entered Ward’s

apartment, appellant was wearing a ski mask while he had a scarf or bandanna

covering his face and was wearing a hat.

      {¶ 10} After the burglary, Copeland was contacted by his probation officer and

told that a Detective would like to speak with him. During a taped statement, Copeland

admitted to being involved in the burglary and told the Detective that appellant was also

involved. Copeland further testified that when he initially talked to the Detective, he

denied involvement in the burglary but that when he was confronted with the evidence

against him, he admitted his involvement.

      {¶ 11} Detective Chad Brubaker of the Mansfield Police Department testified that

after testing on the hat revealed Neil Copeland’s DNA, he contacted Neil Copeland and

that Copeland initially denied involvement in the burglary. However, after being

confronted by the DNA evidence, Copeland admitted he was involved and implicated

appellant as a co-defendant. Detective Brubaker further testified that when he later

spoke with Tyler Ward, Ward provided him with the name JR or Arlie Burns as a

potential suspect. The Detective then asked appellant to come down to the police

station. According to Detective Brubaker, appellant initially denied involvement in the

burglary, but later stated that he had driven Copeland to the scene but had not exited

the car. The Detective did not show any witness a photo array including appellant
Richland County App. Case No. 10CA130                                                   5


because he did not believe that either Ward of Debiew would be able to pick appellant

out of a line-up based on what they had told him.

       {¶ 12} After the State rested, appellant called Amanda Cline, his fiancée, as a

witness. Cline testified that Copeland picked up appellant from his mother’s home on

January 3, 2010. Cline further testified that appellant was with her in Wooster, Ohio

when the burglary occurred on January 10, 2010.             On cross-examination, Cline

admitted that even though she was aware of the indictment against appellant in July of

2010 and knew that the indictment indicated that the crime occurred on January 10,

2010, she did not contact the police or the Prosecutor’s Office with the information that

appellant was with her in Wooster on such date until the night before trial.

       {¶ 13} At the conclusion of the evidence and the end of deliberations, the jury, on

October 15, 2010, found appellant guilty of the crime of aggravated burglary. Pursuant

to a Sentencing Entry filed on October 19, 2010, the trial court sentenced appellant to

six years in prison and ordered that such sentence be served consecutively to

appellant’s sentence in another case. The trial court also ordered that appellant pay

restitution to Ward.

       {¶ 14} Appellant now raises the following assignments of error on appeal:

       {¶ 15} “I. PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A

FAIR TRIAL.     THE PROSECUTOR IMPROPERLY SUGGESTED THAT HEARSAY

IDENTIFIED THE APPELLANT AS ONE OF THE BURGLARS.

       {¶ 16} “II. APPELLANT’S ATTORNEY’S FAILURE TO FILE A NOTICE OF ALIBI

ONE WEEK PRIOR TO TRIAL, RESULTING IN THE EXCLUSION OF A CRUCIAL

WITNESS’ TESTIMONY, CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
Richland County App. Case No. 10CA130                                                     6


       {¶ 17} “III.   THE   COURT     BELOW      ERRED      PREJUDICIALLY        AGAINST

APPELLANT WHEN IT REFUSED TO ADMIT THE TESTIMONY OF CELLMATES OF

CO-DEFENDANT, NEIL COPELAND.”

                                                 I

       {¶ 18} Appellant, in his first assignment of error, argues that, due to prosecutorial

misconduct, he was denied a fair trial.        Appellant specifically contends that the

prosecutor improperly suggested that hearsay testimony from Tyler Ward identified

appellant as one of the burglars.

       {¶ 19} As is stated above, Ward testified that he received a phone call from

someone that he knew named “Johnny” who provided him with the name “JR” as a

possible suspect. After defense counsel objected to such testimony, arguing that it was

hearsay, the following discussion took place on the record:

       {¶ 20} “SIDEBAR:

       {¶ 21} “MR. ROBINSON: This is one of those used for the truth of the matter

asserted; however, it is how they ended up with the defendant’s name and started to

looking (sic) in his direction. He got a call from Johnny Craft that this JR, Arlie Burns

has been bragging about doing this. He goes back to the police officers and tells them

and then - -

       {¶ 22} “THE COURT: Is Craft going to testify?

       {¶ 23} “MR. ROBINSON: I don’t think so. I don’t know. I haven’t listed him in the

list of witnesses, so no.

       {¶ 24} “THE COURT: What do you propose he says?
Richland County App. Case No. 10CA130                                                   7


       {¶ 25} “MR. ROBINSON: Craft says that a guy named JR has bragged that he

burglarized a young kid’s house around - - near the neighborhood. So Craft calls him

and says, hey, I think this guy named JR did it. That’s how he gets the name of JR to

tell the police.

       {¶ 26} “THE COURT: Okay.

       {¶ 27} “MR. RAKESTRAW: Double hearsay, no exception.

       {¶ 28} “THE COURT: What I don’t want you to do is to lead him to say what was

said. You will be permitted and I would suggest that you lead him to get this done. Did

you hear from someone that the defendant might have been…

       {¶ 29} “MR. ROBINSON: I will ask it that way.

       {¶ 30} “THE COURT: Something along that line.             Therefore, he has an

opportunity to explain why he did what he did next without hearsay.” Transcript at 57-

59.

       {¶ 31} Appellant then testified that someone gave him the name of J.R. or Arlie

Burns as a possible suspect and that he relayed such information to the police.

Appellant now maintains that such testimony was inadmissible hearsay and should

have been excluded at trial.

       {¶ 32} The admission or exclusion of evidence rests in the sound discretion of

the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. As a

general rule, all relevant evidence is admissible. Evid.R. 402. Our task is to look at the

totality of the circumstances in the particular case and determine whether the trial court

acted unreasonably, arbitrarily, or unconscionably in allowing the disputed evidence.

See State v. Oman (Feb. 14, 2000), Stark No. 1999CA00027, 2000 WL 22219
Richland County App. Case No. 10CA130                                                  8


      {¶ 33} “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one

of the recognized exceptions. Evid.R. 802; State v. Steffen (1987), 31 Ohio St.3d 111,

119, 509 N.E.2d 383.

      {¶ 34} “The hearsay rule ... is premised on the theory that out-of-court statements

are subject to particular hazards. The declarant might be lying; he might have

misperceived the events which he relates; he might have faulty memory; his words

might be misunderstood or taken out of context by the listener. And the ways in which

these dangers are minimized for in-court statements-the oath, the witness' awareness of

the gravity of the proceedings, the jury's ability to observe the witness' demeanor, and,

most importantly, the right of the opponent to cross-examine-are generally absent for

things said out of court.” Williamson v. United States (1994), 512 U.S. 594, 598,114

S.Ct. 2431, 2434.

      {¶ 35} We need not disturb appellant's conviction if the trial court committed

harmless error, however. See Crim.R. 52(A); State v. Perry, 101 Ohio St.3d 118, 2004-

Ohio-297, 802 N.E.2d 643, ¶ 15. Under this review, “[e]rror in the admission or

exclusion of evidence in a criminal trial must be considered prejudicial unless the court

can declare, beyond a reasonable doubt, that the error was harmless, and unless there

is no reasonable possibility that the evidence, or the exclusion of evidence, may have

contributed to the accused's conviction.” State v. Jones, Franklin App. No. 07AP-771,

2008-Ohio-3565, ¶ 13, citing State v. Bayless (1976), 48 Ohio St.2d 73, 106, 357

N.E.2d 1035, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3135.
Richland County App. Case No. 10CA130                                                    9


“‘Whether [the] error was harmless beyond a reasonable doubt is not simply an inquiry

into the sufficiency of the remaining evidence. Instead, the question is whether there is

a reasonable possibility that the evidence complained of might have contributed to the

conviction.’” (Bracketed word sic.) Id., quoting State v. Conway, 108 Ohio St.3d 214,

2006-Ohio-791, 842 N.E.2d 996, ¶ 78.

       {¶ 36} We find that Tyler’s Ward’s testimony that he received a telephone call

from someone, namely, Johnny Craft, providing him with the name J.R. or Arlie Burns

as a possible suspect was not inadmissible hearsay because it was not asserted to

prove the truth of the matter asserted-that appellant was involved in the burglary. We

note that Johnny Craft did not testify at trial. Under Ohio law, statements which are not

offered to prove the truth of the matter asserted but offered to explain a police officer's

conduct while investigating a crime are not hearsay. State v. Cantlebarry (1990), 69

Ohio App.3d 216, 221, 590 N.E.2d 342, citing State v. Thomas (1980), 61 Ohio St.2d

223, 232, 400 N.E.2d 401. Rather, in this case, such testimony was offered to show

how the police identified appellant as a possible suspect.

       {¶ 37} Moreover, assuming arguendo that such testimony was inadmissible

hearsay, we find, upon our review of the record, that it was harmless error. As is stated

above, Tyler Ward identified one of his assailants as a mixed race, stocky man who

weighed a “good 250 pounds probably.” Transcript at 47. Robyn Debiew testified that

the man who pushed her down was mixed race and was shorter and stockier than the

white man who accompanied him. Both Ward and Robyn Debiew identified appellant at

trial as one of the men involved in the burglary and indicated that they were sure that
Richland County App. Case No. 10CA130                                                    10


the man was appellant. Both indicated that they were able to observe at least part of

appellant’s face during the incident.

         {¶ 38} Testimony was also adduced that, during the burglary, Debiew was able to

grab the hat off of the mixed race male who was involved in the burglary. Testing

revealed the presence of Copeland’s DNA. At trial, Copeland testified that he provided

the man with the hat and that the hat was his. During his interview with police, Copeland

implicated appellant. As part of his plea agreement, Copeland pleaded guilty to an F-3

burglary, which was an amended charge. At trial, Copeland, who was on probation for

another offense, testified that his sentence was conditioned on his testifying truthfully in

appellant’s case. When questioned by police after being implicated by Copeland,

appellant initially denied involvement, but later admitted that he had driven Copeland to

the scene.

         {¶ 39} After the State rested, appellant called Amanda Cline, his fiancée, as a

witness. Cline testified that, on January 3, 2010, she saw Copeland pick up appellant

from his mother’s house. She also testified that, on January 10, 2010, she was with

appellant in Wooster, Ohio. However, Cline never conveyed such information to the

police or prosecution until right before trial.

         {¶ 40} Based on the overwhelming evidence of appellant’s guilt, we find that the

admission of Tyler Ward’s testimony about the alleged call from “Johnny” was harmless

error.

         {¶ 41} Appellant’s first assignment of error is, therefore, overruled.
Richland County App. Case No. 10CA130                                                   11


       {¶ 42}

                                                    II

       {¶ 43} Appellant, in his second assignment of error, argues that he received

ineffective assistance of counsel. Appellant specifically maintains that his trial counsel

was ineffective in failing to file a written Notice of Alibi one week prior to trial.

       {¶ 44} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373. In order to warrant a finding that trial counsel was

ineffective, the petitioner must meet both the deficient performance and prejudice

prongs of Strickland and Bradley. Knowles v. Mirzayance (2009), ––– U.S. ––––, 129

S.Ct. 1411, 1419, 173 L.Ed.2d 251. We apply the Strickland test to all claims of

ineffective assistance of counsel, both trial counsel, or appellate counsel. State v.

Turner, Licking App. No.2006–CA–123, 2007–Ohio–4583; State v. Godfrey (Sept. 2,

1999), Licking App. No. 97CA0155, 1999 WL 770253.

       {¶ 45} To show deficient performance, appellant must establish that “counsel's

representation fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel

made errors so serious that counsel was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104
Richland County App. Case No. 10CA130                                                     12


S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will

render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S.

at 688, 104 S.Ct. 2052 at 2065.

       {¶ 46} Appellant must further demonstrate that he suffered prejudice from his

counsel's performance. See Strickland, 466 U.S. at 691 (“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show 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. To prevail on his ineffective-assistance claim, appellant must

show, therefore, that there is a “reasonable probability” that the trier of fact would not

have found him guilty.

       {¶ 47} During the morning of trial, defense counsel indicated to the trial court that

he intended to present alibi witnesses who would testify that appellant was in Wooster,

Ohio on January 10, 2010. Defense counsel indicated that he had two alibi witnesses,

one who was appellant’s fiancée, Amanda Cline, and the other an unnamed witness.

Because appellant failed to file a written Notice of Alibi seven days prior to trial pursuant

to Crim.R. 12.1, the trial court exercised its discretion and limited appellant to one alibi

witness. Subsequently, Amanda Cline testified that appellant was with her in Wooster,

Ohio on January 10, 2010, the date of the burglary.

       {¶ 48} Appellant did not proffer the testimony of the other alleged alibi witness.

Absent a proffer, the substance of the alleged alibi witness’ proposed testimony is a
Richland County App. Case No. 10CA130                                                  13


matter of sheer speculation, and in that event the record does not demonstrate that

defense counsel performed deficiently by failing to call such witness to testify at trial.

Without a showing of deficient performance, ineffective assistance of counsel is not

demonstrated. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

      {¶ 49} Based on the foregoing, appellant’s second assignment of error is

overruled.

                                                 III

      {¶ 50} Appellant, in his third assignment of error, contends that the trial court

erred in refusing to admit testimony from cellmates of Neil Copeland. Appellant asserts

that these two cellmates would have testified that Copeland indicated to them that he

gave false testimony against appellant.

      {¶ 51} After the trial court refused to admit such testimony on the basis that it

constituted hearsay and did not fall within any exceptions to the hearsay rule, appellant

proffered the testimony of Dustin Grit and Concepcion Hernandez. Jr., Neil Copeland’s

alleged cellmates. The following testimony was adduced when Grit was asked whether

Copeland told him anything about the incident:

      {¶ 52} “A. Yes. He told me that he had - - him and one of his buddies had

robbed Mr. Ward for some pills and that that’s why he was locked up. And I asked him

why he was, uhm, who was with him, and he said one of his buddies. He said the

detective from the case told him not to change the story, to keep it straight, and he told

me that he had blamed it on Mr. Burns.

      {¶ 53} “Q. Did he mention the detective?
Richland County App. Case No. 10CA130                                                     14


       {¶ 54} “A. He didn’t say the name, no.

       {¶ 55} “Q. So, basically, so that I can understand and the court can understand,

he said that he continued to blame Mr. Burns, because that was Tyler’s story, and he

stuck to it?

       {¶ 56} “A. Yeah. Yeah. That was the original story, and he just stuck to it. He

told me he didn’t - -

       {¶ 57} “Q. Did he say anything about who was with him?

       {¶ 58} “A. No. He didn’t say who was with him. He just said he didn’t want to

involve the other person, because his name was never brought up.

       {¶ 59} “Q. Meaning it was never brought up in Tyler’s report or - -

       {¶ 60} “A. Right.

       {¶ 61} “Q. - - Robyn’s report?

       {¶ 62} “A. Right.

       {¶ 63} “Q. Did he say anything else?

       {¶ 64} “A. No. That was pretty much it.” Transcript at 275-276.

       {¶ 65} In turn, Concepcion testified that Copeland told him that when the police

asked him who was with him, “the first person came to his head was JR. He said he

didn’t want to tell on the person that was actually with him. And…he couldn’t change his

story or whatever, but that JR wasn’t there with him.” Transcript at 280. Concepcion

testified that Copeland said that he did not want to “rat on his other friend.” Transcript at

281.
Richland County App. Case No. 10CA130                                                  15


       {¶ 66} Previously, the following testimony had been adduced when Copeland

was asked, during cross-examination, whether he told anyone that he implicated

appellant “primarily because Tyler had suggested that he was with you?”

       {¶ 67} “A. Say that again.

       {¶ 68} “Q. Did he ever tell anyone that the reason you implicated Arlie was that

Tyler had implicated him and you just continued the story”

       {¶ 69} “A. I went along with it, but that was the truth. What Tyler knew was the

truth. I went along with it.

       {¶ 70} “Q. I see. So what you’re telling me is that you knew what Tyler said?

       {¶ 71} “A. I wasn’t going to say a word.

       {¶ 72} “Q. Yeah.

       {¶ 73} “A. And because, you know, I was informed that, hey, Tyler already says it

is this guy, JR. Well, you know what, yeah, it was.

       {¶ 74} “Q. And who did you tell that to?

       {¶ 75} “A. The detective.

       {¶ 76} “Q. Did you tell it to Concepcion Hernandez?

       {¶ 77} “A. I don’t know who that is.

       {¶ 78} “Q. How about Dustin Grit?

       {¶ 79} “A. I don’t know who that is either.

       {¶ 80} “Q. Were you ever in jail with either of those two?

       {¶ 81} “A. I was in jail.

       {¶ 82} “Q. Uhm-hum.

       {¶ 83} “A. I cannot recall neither of those names.
Richland County App. Case No. 10CA130                                                      16


        {¶ 84} “Q. When you were in jail, did you have what we would call bunk mates?

        {¶ 85} “A. Yes.

        {¶ 86} “Q. Uhm-hum. And who were your bunk mates?

        {¶ 87} “A. Uhm, nobody, uhm, nobody that wasn’t there more than a couple of

days.

        {¶ 88} “Q. I see. And you don’t recall their names?

        {¶ 89} “A. No.” Transcript at 184-185.

        {¶ 90} Hearsay is defined as a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid .R. 801(C). Hearsay is not admissible unless it falls within one of the

exceptions enumerated in the rules.

        {¶ 91} Appellant argues that the trial court erred in refusing to admit the

testimony of Copeland’s cellmates because such testimony was admissible under

Evid.R. 801(D)(2)(e). Evid.R. 801(D)(2)(e), provides that a statement of a co-conspirator

is not hearsay when certain requirements are met. Specifically, the rule provides that

“[a] statement is not hearsay if * * * [t]he statement is offered against a party and is * * *

a statement by a co-conspirator of a party during the course and in furtherance of the

conspiracy upon independent proof of the conspiracy.” The proponent of the statement

must establish: (1) the existence of a conspiracy; (2) the defendant's participation in the

conspiracy; (3) the declarant's participation in the conspiracy; (4) that the statement was

made during the course of the conspiracy; and (5) that the statement was in furtherance

of the conspiracy. State v. Milo (1982), 6 Ohio App.3d 19, 451 N.E.2d 1253.
Richland County App. Case No. 10CA130                                                   17


       {¶ 92} A conspiracy does not necessarily end with the commission of the crime.

State v. Siller, Cuyahoga App. No. 80219, 2003-Ohio-1948, at paragraph 28, citing

State v. Shelton (1977), 51 Ohio St.2d 68, 364 N.E.2d 1152. A statement made by a

co-conspirator after the crime may be admissible under Evid.R. 801(D)(2)(e) if it was

made in an effort to conceal the crime. Id.

       {¶ 93} We find that the statements that Neil Copeland allegedly made, while in

jail, to his cellmates did not fall within the hearsay exception contained Evid.R.

801(D)(2)(e). Such statements were not made during the course and in furtherance of

any alleged conspiracy and were not made in an effort to conceal the crime.

       {¶ 94} Appellant also contends that such statements were admissions against

interest and were admissible under Evid.R. 804(B)(3). Evid.R. 804 states, in relevant

part, as follows: “(B) Hearsay exceptions “The following are not excluded by the hearsay

rule if the declarant is unavailable as a witness:…“(3) Statement against interest. A

statement that was at the time of its making so far contrary to the declarant's pecuniary

or proprietary interest, or so far tended to subject the declarant to civil or criminal

liability, or to render invalid a claim by the declarant against another, that a reasonable

person in the declarant's position would not have made the statement unless the

declarant believed it to be true. A statement tending to expose the declarant to criminal

liability, whether offered to exculpate or inculpate the accused, is not admissible unless

corroborating circumstances clearly indicate the truthworthiness of the statement.”

(Emphasis added).

       {¶ 95} In the case sub judice, the declarant, Neil Copeland, clearly was not

unavailable. He testified at trial and was subject to cross-examination. He, therefore,
Richland County App. Case No. 10CA130                                                   18

cannot be deemed unavailable for purposes of Evid.R. 804(B)(3). Such exception,

therefore, is not applicable.

       {¶ 96} The next issue for determination is whether or not Copeland’s alleged

statements to Grit and Concepcion were admissible under Evid. R. 613 for

impeachment purposes.           Evid. R. 613(B), captioned “Extrinsic evidence of prior

inconsistent statement of witness,” permits impeachment of self-contradictory

statements and the use of extrinsic evidence to so impeach. State v. Francis (Feb. 23,

2000), Guernsey App. No. 98CA24, 2000 WL 221947. The rule reads as follows:

“Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of

the following apply:

       {¶ 97} “(1) If the statement is offered solely for the purpose of impeaching the

witness, the witness is afforded a prior opportunity to explain or deny the statement and

the opposite party is afforded an opportunity to interrogate the witness on the statement

or the interests of justice otherwise require;

       {¶ 98} “(2) The subject matter of the statement is one of the following:

       {¶ 99} “(a) A fact that is of consequence to the determination of the action other

than the credibility of a witness;

       {¶100} “(b) A fact that may be shown by extrinsic evidence under Evid.R. 608(A),

609, 616(B) or 706;

       {¶101} “(c) A fact that may be shown by extrinsic evidence under the common law

of impeachment if not in conflict with the Rules of Evidence.”

       {¶ 102}         Upon our review of the record, we find that the statements of Grit

and Concepcion were admissible under Evid.R. 613(B) to impeach Copeland. While
Richland County App. Case No. 10CA130                                                   19


Copeland testified that he implicated appellant because Tyler Ward had implicated

appellant and because it was the truth, Grit testified that Copeland told him that “he

didn’t want to involve the other person, because his name was never brought up.”

Transcript at 276. Clearly, such other person was not appellant.

        {¶ 103}       In turn, Concepcion testified that Copeland told him that appellant

was not with him at the time of the burglary. We find that both statements contradicted

Copeland’s testimony at trial and should have been admitted to impeach Copeland’s

prior inconsistent statement.

        {¶ 104}       We find that the trial court abused its discretion in excluding the

testimony of Grit and Concepcion as to what Copeland allegedly had told them while in

jail.

        {¶ 105}       Appellant’s third assignment of error is, therefore, sustained.

        {¶ 106}       Accordingly, the judgment of the Richland County Court of

Common Pleas is reversed and this matter is remanded to the trial court for further

proceedings.

                                                                            By: Edwards, J.

Gwin, P.J. concurs and

Farmer, J. dissents

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                                                     ______________________________

                                                     ______________________________

                                                                  JUDGES
Richland County App. Case No. 10CA130                                                   20

Farmer, J., dissents

      {¶106} I respectfully dissent from the majority's decision in Assignment of Error III

because pursuant to Evid.R. 613(B), I find Copeland was not afforded a prior

opportunity to explain or deny his statements. Copeland's direct and cross-examination

do not rise to the level of providing an opportunity as he was not questioned on specific

statements he made to his cellmates. I would find the foundation falls short of the

mandates required by Evid.R.613(B). State v. Theuring (1988), 46 Ohio App.3d 152,

155. Copeland was not afforded a clear prior opportunity to explain or deny the alleged

statements made to Grit and Hernandez.

      {¶107} I would deny Assignment of Error III.




                                         ________________________________
                                         HON. SHEILA G. FARMER
[Cite as State v. Burns, 2011-Ohio-5926.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


THE STATE OF OHIO,                                :
                                                  :
                                      Appellee,   :
                                                  :
                                                  :
v.                                                :       JUDGMENT ENTRY
                                                  :
ARLIE BURNS,                                      :
                                                  :
                                     Appellant.   :       CASE NO. 10CA130




     For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is reversed and this matter is

remanded to the trial court for further proceedings. Costs assessed to the appellee.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
