[Cite as State v. Pierce, 2013-Ohio-3593.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
BURTON JAMES PIERCE                          :       Case No. 2013CA00020
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2012-
                                                     CR-0837




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    August 19, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      BERNARD L. HUNT
Prosecuting Attorney                                 2395 McGinty Road, N.W.
                                                     North Canton, OH 44720
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
110 Central Plaza, South – Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00020                                                    2

Baldwin, J.

      {¶1}    Defendant-appellant Burton J. Pierce appeals his conviction and sentence

from the Stark County Court of Common Pleas on eight (8) counts of receiving stolen

property. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}    On July 23, 2013, the Stark County Grand Jury indicted appellant on nine

(9) counts of receiving stolen property in violation of R.C. 2913.51(A), felonies of the

fourth degree, and one (1) count of arson in violation of R.C. 2909.03(A)(2), also a

felony of the fourth degree. At his arraignment on August 17, 2012, appellant entered a

plea of not guilty to the charges. Pursuant to a Judgment Entry filed on September 28,

2012, the trial court granted appellant’s request to sever the arson charge from the

receiving stolen property charges for purposes of trial.

      {¶3}    A jury trial on the charges of receiving stolen property commenced on

December 11, 2012. Prior to the commencement of trial, defense counsel stipulated to

the fact that the nine vehicles were stolen and to the dates that they were stolen.

      {¶4}    George Rafailedes testified that in February of 2012, he was the owner of

a 1989 Chevy Caprice. He testified that he reported the vehicle stolen on or about

February 12, 2012 and that the vehicle was running fine. Rafailedes testified that he

made a police report and that the Canton Police Department later called him and told

him that they had the vehicle in the impound lot. The steering column was broken.

Rafailedes testified that he did not know appellant and never gave him permission to

have his vehicle.
Stark County, Case No. 2013CA00020                                                      3


      {¶5}   Robert Selig testified that at one time he owned a 1988 G20 Chevy van

that was operable. He reported the van stolen on or about February 17, 2012. Selig

contacted the police department and filed a report. He testified that the police contacted

him the same day and told him that they had found the van at a chop shop on

Harrisburg Road. The steering column was damaged. According to Selig, he did not

know appellant and never gave him permission to have the van.

      {¶6}   The next witness to testify was Tammy Cline. She testified that, in

February of 2012, she was in possession of a 1986 Pontiac that was owned by her

father. Cline testified that she reported the vehicle, which was in mint condition, stolen

on February 13, 2012 and that the police later contacted her and told her that the

vehicle was in the Canton impound lot. The steering column was damaged. Cline

testified that she did not know appellant and did not give him permission to have her

vehicle.

      {¶7}   Connie Rose next testified that she reported her 1989 G20 van, which was

operable, stolen on February 15, 2012. The police contacted her on or about February

20, 2012 and told her that they had located her vehicle at a chop shop on Harrisburg

Road. When she later saw her vehicle in the impound lot, the steering column was

broken and the outside was damaged. Rose testified that she did not know appellant

and did not give him permission to have her vehicle.

      {¶8}   Ethan Frey testified that in February of 2012, he was the owner of a 1995

Oldsmobile Cutlass that ran perfectly. He reported the vehicle stolen on February 17,

2012. Frey was later contacted by the Canton police and told that his vehicle had been

recovered. The windows were broken out and the steering column was damaged. He
Stark County, Case No. 2013CA00020                                                      4


testified that he did not know appellant and did not give him permission to have his

vehicle.

      {¶9}    At trial, Jason Shaw testified that, in February of 2012, he was the owner

of a 1990 Chevy Suburban that ran fine. He reported the vehicle stolen on February 15,

2012. After the vehicle was recovered and taken to the impound lot, Shaw went down to

see the vehicle. He testified that every piece of glass on the vehicle was broken, the

suspension was broken and the steering column was damaged. He stated that he did

not know appellant and did not give him permission to have his vehicle.

      {¶10}   Treva Mayle testified that, in February of 2012, she was the owner of a

1989 Oldsmobile Royale that was stolen. After the police called her and told her that the

vehicle had been recovered and was in the impound lot, Mayle went to see the vehicle,

which had been operable. The steering column was damaged, the windows broken out

and the trunk was smashed. Mayle testified that she did not know appellant and did not

give him permission to have her vehicle.

      {¶11}   Although Justin Smith, the owner of a 1989 Buick LaSabre, did not appear

for trial, defense counsel stipulated that his vehicle was stolen.

      {¶12}   The next witness to testify was Detective Ryan Hostetler of the Stark

County Sheriff’s Office. He testified that on February 17, 2012, he was at the address

of 2721 Harrisburg Road in Canton, which is the address of appellant’s business. He

testified that he parked to the south of the business in a city park parking lot and had a

direct view of appellant’s business. According to the Detective, he saw a white Chevy

Caprice backed up to the fence on appellant’s property and ran the license plate

through the LEADS state database. The car came back as stolen. After calling for
Stark County, Case No. 2013CA00020                                                         5


assistance, Detective Hostetler went to appellant’s business and spoke to appellant. He

told appellant that they had received a tip that there were stolen vehicles in the back of

appellant’s property and that they were taking parts out for scrap. He also told appellant

that the vehicle he saw through the fence was stolen. Appellant denied that there were

any stolen vehicles on his property and gave the Detective consent to search his

property. Numerous stolen vehicles were located in the backyard of appellant’s

property. The Detective testified that he witnessed one of appellant’s employees

“operating the white vehicle that was stolen out of the City of Canton, had a chain

hooked to it which was hooked to another car. He was trying to flip the car back over

which was sitting on it (sic) side.” Transcript at 163. He further testified that some of the

vehicles were located within 50 feet of the back of appellant’s building.

      {¶13}   Detective Hostetler testified that he located nine vehicles in the back of

appellant’s business, all which were reported stolen. The vehicles were broken up and

some had the motors pulled out. The Detective testified that about 60% of the vehicles

had the steering columns broken, which indicated that they were stolen. All of the

vehicles, except one, reported stolen out of Summit County, were towed to the Canton

impound lot. He testified that all of the vehicles were GMC vehicles and that there was a

1986 Pontiac, a 1989 Chevy G20 van, another Chevy van, a 1989 Oldsmobile, a 1995

Chevy Bonneville, a 1989 Buick LaSabre, a Chevy Suburban and a car trailer.

      {¶14}   Detective Hostetler interviewed appellant about the stolen vehicles and

the interview, which was recorded, was played for the jury. When the Detective spoke

with appellant, appellant told him that he rented out the back of his business to Dwight

Griffin and others. Detective Hostetler testified that appellant’s business property was
Stark County, Case No. 2013CA00020                                                          6


not divided in any way and was like a single big backyard measuring a couple of acres.

The majority of the property was fenced in and there was no fencing or signage

indicating that one part of the property was being rented out to someone else. The

stolen vehicles were scattered throughout the back of the property. When the Detective

spoke to other individuals on the property, all claimed that they were appellant’s

employees and none claimed to be employees of the alleged renter.

      {¶15}   On cross-examination, the Detective testified that some of the vehicles

were 150 feet from the back of appellant’s building. He admitted that appellant told him

that he had rented the rear of the property to Griffin and others, including David McCain,

and that appellant told him that he had just found out that McCain was in jail. The

Detective stated that he knew McCain had been charged with theft, vandalism and

receiving stolen property, all which had nothing to do with appellant’s business. The

Detective also testified that appellant told him that Griffin’s girlfriend, Chrystal, had been

driving the white Chevy Caprice.

      {¶16}   Detective Hostetler further testified that appellant told him that he had just

started the business within the last two weeks and that he ran an auto repair shop in the

building and also scrapped cars. Appellant told him that he rented the property for

$1,500.00 a month and had rented the rear 2 acre lot to Griffin and his friends for

$500.00 a month. Appellant indicated to the Detective that he was going to get the

$500.00 rent by removing catalytic converters from scrapped vehicles and that he did

not know that Griffin was doing anything illegal. Appellant also told the Detective that

he had a business at 30002 Harrisburg Road, N.E. and volunteered to go there with
Stark County, Case No. 2013CA00020                                                                    7


Detective Hostetler so that he could search the place. The Detective testified that he

went there with appellant and found a couple of scrapped cars that were not stolen.

      {¶17}    On redirect, the Detective testified that appellant never showed him a

lease agreement.

      {¶18}    At the conclusion of the evidence, defense counsel made a Crim.R. 29

motion for judgment of acquittal. The trial court granted such motion with respect to

Count Three1 , but otherwise overruled the motion. The jury then found appellant guilty

of the eight remaining charges.

      {¶19}    Thereafter, on December 17, 2012, appellant entered a plea of guilty to

the arson charge. As memorialized in a Judgment Entry filed on January 11, 2013,

appellant was sentenced to a prison term of 24 months.

      {¶20}    Appellant now raises the following assignment of error on appeal:

      {¶21}    THE     APPELLANT         WAS      DENIED       HIS    RIGHT      TO    EFFECTIVE

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ARTICLE 1, SEC. 10 OF THE OHIO

STATE CONSTITUTION, BECAUSE THE APPELLANTS ATTORNEY FAILED TO

CALL A WITNESS, PRODUCE THE LEASE AGREEMENT AND STIPULATED TO A

CHARGE OF O.R.C 2913.51 (A), WITHOUT EVIDENCE OF A THEFT.

                                                      I

      {¶22}    Appellant, in his sole assignment of error, argues that he was denied his

right to the effective assistance of counsel. We disagree.




1
  Such count involved a vehicle owned by Mark King that was stolen from Summit County. King did not
testify at trial.
Stark County, Case No. 2013CA00020                                                         8


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

The first inquiry in 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, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180 (1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

      {¶24}   In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142. Because of the difficulties inherent in

determining whether effective assistance of counsel was rendered in any given case, a

strong presumption exists that counsel's conduct fell within the wide range of

reasonable, professional assistance. Id.

      {¶25}   In order to warrant a reversal, the appellant must additionally show he was

prejudiced by counsel's ineffectiveness. Prejudice warranting reversal must be such that

“there is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceedings would have been different.” Strickland, 466 U.S. at 694. A court

making the prejudice inquiry must ask if the defendant has met the burden of showing

that the decision reached would “reasonably likely been different” absent the errors.

Strickland, 466 U.S. 695, 696. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, supra; Bradley, supra.

      {¶26}   Appellant argues, in part, that his trial counsel was ineffective in failing to

produce the alleged lease agreement that he had with Griffin and in failing to call
Stark County, Case No. 2013CA00020                                                         9


Chrystal, Griffin’s girlfriend, to testify in his defense about the existence of the lease

agreement.

      {¶27}   With respect to the lease agreement, appellant cannot demonstrate that

such an agreement even existed. He cannot, therefore, demonstrate that his counsel

was ineffective in failing to produce the same. Moreover, counsel's decision regarding

the calling of witnesses is within the purview of trial strategy, and the failure to

subpoena witnesses for trial does not violate counsel's duty to defendant absent a

showing of prejudice. State v. Coulter, 75 Ohio App.3d 219, 230, 598 N.E.2d 1324 (12th

Dist 1992). Accordingly, courts have traditionally been reluctant to find ineffective

assistance of counsel in those cases where an attorney fails to call a particular witness.

See State v. Otte, 74 Ohio St.3d 555, 565–66, 1996-Ohio-108, 660 N.E.2d 711.

      {¶28}   In the case sub judice, appellant cannot demonstrate how Chrystal would

have testified. As noted by appellee, she might have testified that there was no lease

agreement.    In short, we find that appellant has failed to demonstrate that he was

prejudiced by the failure to present Chrystal’s testimony. Appellant has failed to

demonstrate that there exists a reasonable probability that, had trial counsel

subpoenaed Chrystal, the result of his case would have been different.

      {¶29}   Finally, appellant argues that his trial counsel was ineffective in stipulating

to Count One, which concerned a stolen vehicle owned by Justin Smith. Smith did not

testify at trial. At trial, defense counsel stipulated to the fact that Smith’s vehicle was

stolen after confirming from a Canton police Department report that the vehicle was

reported stolen on February 13, 2012. Appellant now contends that defense counsel

should not have so stipulated without testimony from the owner.
Stark County, Case No. 2013CA00020                                                     10


     {¶30}     However, as noted by appellee, the factual issue at trial was not whether

or not the vehicles mentioned in the indictment were in fact stolen, but rather whether

appellant knew or should have known that the vehicles, which were on his property,

were stolen.    Appellant was charged with receiving stolen property in violation of

2913.51(A). Such section states as follows: “(A) No person shall receive, retain, or

dispose of property of another knowing or having reasonable cause to believe that the

property has been obtained through commission of a theft offense.” The stipulation

merely relieved appellee of the burden of proving that the vehicles were stolen- not of

the burden of proving that appellant knew or had reasonable cause to believe that they

were stolen. There is nothing in the record suggesting that counsel's decision to agree

to the stipulation was anything but sound trial strategy. We must presume that counsel's

performance was effective and that counsel had a reasonable basis to stipulate that

Smith’s car was stolen. See State v. Braxton 102 Ohio App.3d 28, 656 N.E.2d 970 (8th

Dist. 1995). Finally, we note that there is no showing that trial counsel's decision to

enter into such stipulation prejudiced appellant's defense. We concur with appellee that

appellant cannot show that Justin Smith would not have testified that his vehicle was

stolen and later recovered at appellant’s business and that he had never given appellant

permission to have possession of his vehicle.

     {¶31}     Based on the foregoing, appellant’s sole assignment of error is overruled.
Stark County, Case No. 2013CA00020                                               11


      {¶32}   Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.


By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.




                                      HON. CRAIG R. BALDWIN



                                      HON. SHEILA G. FARMER



                                      HON. JOHN W. WISE




CRB/dr
[Cite as State v. Pierce, 2013-Ohio-3593.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :
        Plaintiff - Appellee                    :
                                                :
-vs-                                            :      JUDGMENT ENTRY
                                                :
BURTON JAMES PIERCE                             :
                                                :
        Defendant - Appellant                   :      CASE NO. 2013CA00020


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

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs

assessed to appellant.




                                             HON. CRAIG R. BALDWIN



                                             HON. SHEILA G. FARMER



                                             HON. JOHN W. WISE
