[Cite as State v. Phillips, 2014-Ohio-3670.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 16-13-09

        v.

ROGER A. B. PHILLIPS,                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Wyandot County Common Pleas Court
                            Trial Court No. 12-CR-0050

                                       Judgment Affirmed

                             Date of Decision: August 25, 2014




APPEARANCES:

        Shane M. Leuthold for Appellant

        Jonathan K. Miller for Appellee
Case No. 16-13-09


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Roger Adam Blake Phillips (“Phillips”) brings

this appeal from the judgment of the Common Pleas Court of Wyandot County,

Ohio, sentencing him to eight years in prison after a jury convicted him of

aggravated burglary, a felony of the first degree in violation of R.C.

2911.11(A)(1).    Phillips challenges his conviction based on sufficiency and

manifest weight of the evidence. He further asserts that his trial counsel was

ineffective. He also argues that the trial court erred by denying his motions for

acquittal and for a new trial, as well as by imposing a sentence that was more

severe than the sentences imposed on his accomplices.        For the reasons that

follow, we affirm the trial court’s judgment.

                                Statement of Facts

       {¶2} On April 4, 2012, in Carey, Ohio, Mrs. Cleo Turnbell (“Mrs.

Turnbell”), a seventy-nine-year-old widow, who lived alone on Crabapple Drive,

was awakened in the early morning hours by the sound of something falling in her

house. When she got up to check on the origin of the noise, she discovered a man

with a flashlight in her utility room. She started screaming and the intruder

appeared before her. He was wearing a dark hooded sweatshirt, a face mask, and

gloves, and he was carrying a gun. The intruder asked Mrs. Turnbell for money

and immediately after obtaining it, he fled through the door leading to her garage.


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Mrs. Turnbell then realized that the intruder had broken in through her garage

door, took the money from her car, and then entered the house through the door

leading to the house from the garage. She also noticed that, in addition to the

garage door, her front door had been opened from the inside and left wide open.

Other rooms in her house bore signs of an intrusion and money was missing from

her desk. She called 911 and reported the incident.

      {¶3} During an investigation following the incident, the police recovered

physical evidence, including an empty Red Bull can, a pair of rubber gloves, and a

shoe impression on a white bank envelope from which the money was taken. The

scene was photographed. The investigation revealed that more than one intruder

was in Mrs. Turnbell’s residence on the morning of April 4, 2012. Initially, two

individuals were charged for their involvement in this crime, Brendan Hoffman

(“Hoffman”) and Jeremy Ritter (“Ritter”).      The two admitted that they were

responsible for the offense and they revealed that they had one more accomplice.

The two men implicated Phillips in the crime and agreed to testify against him in

exchange for more beneficial sentences for them.

      {¶4} An indictment by the grand jury against Phillips was filed on August

28, 2012, charging him with aggravated burglary, a felony of the first degree in

violation of R.C. 2911.11(A)(1). (R. at 1.) Phillips was arrested on the same day

and arraigned on August 29, 2012. He pled not guilty and received the assistance


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of an appointed attorney, Todd A. Workman. (R. at 9.) On January 22, 2013,

attorney Merle R. Dech Jr. entered his appearance as counsel for Phillips,

substituting for attorney Workman. (R. at 25.) The matter went to trial by jury.

The testimony relevant to the issues raised by Phillips on appeal can be

summarized as follows.

                               State’s Case in Chief

                                   Mrs. Turnbell

      {¶5} Mrs. Turnbell testified about her recollection of the night in question.

She recalled that as she walked into her kitchen to investigate the source of the

noise in her house, she realized that someone was in there and she started

screaming, “What do you want? What are you doing in my house?” (Trial Tr. at

111.) She then described the following,

      And so here comes this person all masked, hooded mask. He walked
      right past my refrigerator and appeared and said, “Put your hands in
      the air.” I said, “I will, I will, I will.” I started screaming, begging,
      “Please don’t hurt me. Please don’t hurt me.” I saw he had a gun in
      his left hand.

      And he said, “I’m not going to hurt you.” He said, “Just tell me”—
      he said, “All I want is your money. Just tell me where you keep it.”
      And I said, “Well, all I have is what’s in my wallet.” Little did I
      know they were already in the two bedrooms and got what they
      wanted. And so I said, “Well, I’ll give you what’s in my wallet.” So
      he backed up, and we went right down—there is one step down into
      my family room. And the picture you saw was my purse hanging on
      the arm of my chair where I usually kept it. I got my wallet out, and
      it was dark. I couldn’t see what I was giving him, because I had


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       night lights on. And he assured me twice that he wasn’t going to
       hurt me; he just wanted my money.

(Id. at 112.) Mrs. Turnbell then testified that the offender kept the gun in view so

that she could see it. (Id. at 113.) When asked by the prosecutor whether she felt

threatened by it, she responded, “Well, yes. That’s why I was begging for my

life.” (Id.) She stated that “[b]y this time, [she] didn’t see a flashlight. [She] just

saw the gun.” (Id. at 130.) She described the gun as black but not a revolver type.

(Id. at 113-115.)

       {¶6} Mrs. Turnbell only saw one intruder, who was of small build and

approximately her height, which was about 5 feet and 6 inches. (Id. at 115, 131,

136.) She thought the individual’s weight was about “155 or something,” but she

admitted that she initially had indicated that the intruder weighed about 180

pounds. (Id. at 115, 131-132, 135.) Referring to the discrepancy, Mrs. Turnbell

explained, “I said he was small, small built [sic]. I knew he wasn’t a big person.”

(Id. at 115.) Mrs. Turnbell testified that the intruder was wearing a dark hooded

sweatshirt, a mask that covered all of his face except for the eyes, and black

gloves. (Id. at 115, 132.) The individual’s voice was young, but she did not

recognize it. (Id. at 114, 130, 133, 135.) She admitted, however, that in her initial

statement to the police, she had indicated that the intruder’s voice sounded like she

had heard it before and she had suspected an individual called Dustin Dyer. (Id. at

135-136.)

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       {¶7} Mrs. Turnbell testified that after she had given the offender the

money, he left without physically harming her. (Id. at 114.) Although the intruder

left through the door leading to her garage, she noticed that her front door had

been unlocked and left standing open. (Id. at 106, 114, 133.) As Mrs. Turnbell

was waiting for the police, she was looking out of her utility door glass, and in the

driveway across the street, she saw a man with a hooded sweatshirt on, whose

clothes resembled the individual she had seen in her house. (Id. at 125-126.) Mrs.

Turnbell found a footprint on one of the empty bank envelopes left on the floor

and she reported it to the police. (Id. at 119.)

       {¶8} Mrs. Turnbell testified that she had known Phillips through his

parents. Phillips and his father had done her yard work in the past, but the most

recent service by them was about four years before the burglary. (Id. at 136-137.)

                                    Jeremy Ritter

       {¶9} Ritter testified that he was incarcerated and was serving six years as a

result of the burglary in Mrs. Turnbell’s house. (Id. at 145-146.) He also admitted

to having prior felony convictions for trafficking in drugs. (Id. at 162.) Ritter

testified that he had been a friend of Phillips for a number of years. (Id. at 145.)

He disclosed that he had agreed to testify against Phillips about his involvement in

the crime in exchange for a reduced sentence for himself; but he denied trying to

“frame” Phillips. (Id. at 162, 171.)


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       {¶10} Ritter testified that the burglary was Phillips’ idea and he first heard

about it when he was drinking with Hoffman in Findlay.            (Id. at 145-147.)

According to Ritter, Phillips told them that there was a lot of money in Mrs.

Turnbell’s residence and that he knew exactly where it was. (Id. at 151.) That

same night, Hoffman and Ritter went to Ritter’s house, which was also on

Crabapple Drive. (Id. at 147-148.) Phillips joined them and brought a book bag

with two guns in it. (Id. at 149.) Ritter testified that one of the guns was a black

BB gun, which looked like a semi-automatic weapon, and the other one, Ritter was

“pretty sure” was “a .38,” a revolver. (Id. at 149-150.) According to Ritter,

Hoffman took the BB gun and Phillips took the other gun into the burglary, while

Ritter did not have any weapons with him. (Id. at 150, 165-166, 171.)

       {¶11} They got ready at Ritter’s house by putting “gloves on and stuff,”

and putting socks over their shoes in order to cover up the footprints. (Id. at 148,

150-151.) Ritter had a mask on and a pair of Cleveland Brown winter gloves. (Id.

at 150.) He stated that one of the other men had latex gloves on but he did not

remember whether it was Phillips or Hoffman. (Id. at 150.) He later said that

Hoffman was the one wearing blue latex gloves. (Id. at 171.)

       {¶12} Ritter stayed in the garage during the burglary, while Phillips and

Hoffman rifled through Mrs. Turnbell’s car and then went inside the house, with

Hoffman leading the way. (Id. at 153-154, 156, 166-167.) After about five or ten


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minutes, Ritter heard a scream and he heard someone yell “put your hands up.”

(Id. at 157.) He also heard someone say, “Get the fuck down.” (Id. at 167.) He

did not know whose voice he had heard. (Id. at 157.) He ran out of the garage

door, and ran back to his house through backyards. (Id. at 157, 168.) He saw that

Hoffman was already 30 to 40 feet in front of him, although Hoffman did not

come out through the garage door with him. (Id. at 157-158.) He later clarified

that Hoffman was 30 to 40 yards ahead of him. (Id. at 168.) Ritter was “pretty

sure” that Hoffman had left the house through the front door. (Id. at 158.) Ritter

testified that Hoffman “was stopped behind a shed,” hiding and waiting for him to

catch up. (Id. at 169.) He caught up to Hoffman and the two men ran into Ritter’s

house. (Id. at 158-159.) Ritter recalled that, as they were running by Snyder Park

where Crabapple Drive ends, a black truck drove by. (Id. at 171-172.) Hoffman

and Ritter waited at Ritter’s house for Phillips, who took longer to get back. (Id.

at 158-159.)

      {¶13} Ritter testified that after the robbery, he disposed of evidence. (Id. at

154-155, 161, 170.) He was nervous about getting caught and was worried that

someone would recognize him, given his considerable height and weight. (Id. at

159.) He later learned that someone had seen him running down his street at about

5:00 or 5:30 that morning. (Id. at 159.) Ritter testified that he had met with




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Phillips and Phillips’ father at some point to “talk about what happened,” meaning

“the crime, itself.” (Id. at 160.)

       {¶14} Ritter admitted that after being arrested, he talked to Hoffman

through the vents in Wyandot County Jail. (Id. at 172.) He acknowledged that he

had not come forward to the police about the facts of this crime until about three

or four months after his incarceration. (Id.)

                                     Brendan Hoffman

       {¶15} Brendan Hoffman testified that he was in prison for a number of

charges, including six years for the burglary of Mrs. Turnbell’s residence. (Id. at

209.) Hoffman admitted that he had entered into an agreement for a sentence

recommendation so that sentences for all his convictions would run concurrently,

which was very beneficial to him. (Id. at 230-231.) He came forward with

evidence about this case to “try to make amends.” (Id. at 209.)

       {¶16} Hoffman’s testimony in many respects confirmed Ritter’s version of

events. Some of their statements differed, however. Hoffman testified that it was

all three of them who came up with the idea to burglarize Mrs. Turnbell’s home

after “a source” told them that there was a large amount of money there. (Id. at

210-211.) On cross-examination, Hoffman confirmed that he had previously told

Lieutenant Frey that Phillips was the alleged source because he knew about the

money being at Mrs. Turnbell’s residence after having mowed her grass. (Id. 215-


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216.) Similarly to Ritter, Hoffman testified that he was in Findlay with Ritter

when the idea came up, and then went to Carey to Ritter’s house, where they

“suited up and headed over to Snyder Park where Cleo Turnbell lives.” (Id. at

211.)

        {¶17} Hoffman confirmed Ritter’s testimony regarding preparations at his

garage and claimed that he wore a black zip up, socks over his shoes, a mask, and

blue rubber gloves. (Id. at 212, 214.) He claimed that Phillips also wore latex

gloves. (Id. at 222.) Hoffman denied having a gun or anything that could look

like a gun, but confirmed that Phillips had a black BB gun. (Id. at 212, 219, 222.)

He testified that the only gun he saw that night was the BB gun. (Id. at 229.)

Hoffman testified that prior to the robbery, he had drunk from a Red Bull can,

which he threw away, and which was later found by the police. (Id. at 214, 221-

222, 229-230.) He claimed that he had shared the drink with Phillips. (Id.)

        {¶18} Hoffman admitted that he and Phillips went into Mrs. Turnbell’s

house, while Ritter stayed in the garage for a lookout. (Id. at 212.) He admitted

that he had taken money from the bank envelope that was later found on the floor

in Mrs. Turnbell’s house, and that it was his footprint that was found on the bank

envelope. (Id. at 217, 221.) He heard someone in the house say “Freeze bitch,”

and when he heard Mrs. Turnbell scream, he ran away through the front door,

leaving it open, without checking what had happened. (Id. at 212-213, 220-221.)


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He ran around the house and saw Ritter who had left through the back door and

was already running too. (Id. at 227.) Hoffman passed Ritter and ran ahead of

him, straight to Ritter’s house. (Id. at 213, 227-228.) He denied hiding in a shed

on the way. (Id. at 228.) Hoffman remembered seeing a pickup truck on the way

to Ritter’s house. (Id. at 229.)

       {¶19} Hoffman testified that after the crime, he spoke to Phillips about it,

“but not much,” and they encouraged each other to keep this all secret.” (Id. at

231-232.) Phillips told him, however, that he had talked about the crime to his

father, who was a former police chief. (Id. at 232.)

       {¶20} Hoffman admitted that although the burglary at Mrs. Turnbell’s

house was his first, he did “a couple more” afterwards. (Id. at 225.) He was

apprehended by Lieutenant Frey on April 10, 2012. (Id. at 225.) He did not talk

to Lieutenant Frey about Phillips at that time. (Id. at 226.) During the trial,

Hoffman did not remember statements that he had made to Lieutenant Frey; he

claimed that he had been “really high on drugs” at the time. (Id. at 225-226.) He

did remember reading a statement in his discovery pack indicating that he had

implicated another individual, Jeremy Walters, in the burglary. (Id. at 226.) He

admitted that he did not mention Phillips until August 2012, after he “had taken

care of other matters,” and before proceedings on this case against him started.




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(Id. at 226-227.) Hoffman tried to keep Phillips’ name “out of this as long as [he]

could.” (Id. at 232.)

       {¶21} Hoffman admitted that after his arrest, he talked to Ritter through the

vents of Wyandot County Jail. (Id. at 223.) He also wrote a letter to Phillips from

jail, in which he requested Phillips to provide him with drugs. (Id. at 224.)

Phillips did not bring the drugs to him. (Id. at 224-225.)

                                     Kyle Shaw

       {¶22} Kyle Shaw (“Shaw”), who grew up next to Phillips “for like twenty

years,” testified that he had sold Phillips a black BB gun, which looked like a

semi-automatic pistol, sometime in the end of March or early April 2012. (Id. at

176.) The sale occurred before the burglary at issue. (Id. at 177.) He admitted

that he had stolen the BB gun from Walmart before selling it to Phillips. (Id. at

178.) He also admitted that he had been convicted of grand theft motor vehicle

and of arson in 2006. (Id. at 177.) He contended that he was telling the truth on

the stand. (Id. at 178.)

                            Deputy Christopher Verhoff

       {¶23} Deputy Christopher Verhoff (“Deputy Verhoff”), who was a Carey

police officer at the time of the burglary, testified about his investigation of the

incident and about the evidence obtained as a result. (Id. at 179.) He testified that

after receiving a call about the burglary, he patrolled the general area prior to


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going to Mrs. Turnbell’s house. (Id. at 197-198.) During that time, he came into

contact with Richard Siefert (“Siefert”), who had flagged him down and

volunteered information about what he had seen that morning. (Id. at 198.) Based

on the information learned from Siefert, Deputy Verhoff developed one suspect,

Ritter. (Id. at 199.) He asked Siefert to submit a written statement as to what he

had seen that morning. (Id. at 208.) Siefert never submitted a statement in spite of

Deputy Verhoff’s attempts to obtain one from him. (Id. at 208.)

      {¶24} After talking to Siefert, Deputy Verhoff went to Mrs. Turnbell’s

residence, where he learned that the suspect was about 5’7” tall, approximately

180 pounds, and had a gun in his left hand. (Id. at 200.) Mrs. Turnbell thought

that she had heard the intruder’s voice before and she thought it belonged to one

Dustin Dyer. (Id. at 202-203.) Deputy Verhoff remained in contact with Mrs.

Turnbell after the initial investigation and he later learned that the weight of the

suspect was more like 160 pounds rather than 180 pounds. (Id. at 205.)

      {¶25} Deputy Verhoff located “a couple foot tracks” leading away from the

home. (Id. at 181.) It appeared to be two sets of footprints leading away from the

garage door, “where the home was broken into,” into the grass behind the

residence. (Id. at 181, 203.) He found several items, which were located along the

path from Mrs. Turnbell’s residence to Ritter’s home, including a Red Bull can

and blue latex gloves. (Id. at 182-185.) Deputy Verhoff testified that the two


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rubber gloves were different in shape, one was “more extended” while the other

one was more “crumpled up.” (Id. at 188.) No fingerprints or tool marks were

found in the residence. (Id. at 190.) The DNA found on the Red Bull can and the

gloves implicated Hoffman. (Id. at 195.)

       {¶26} There was a partial fingerprint on the Red Bull can, which did not

match Phillips’ fingerprints. (Id. at 194.) Testifying about the shoe impression

found on the bank envelope, Deputy Verhoff confirmed that it was consistent with

the shoes and socks obtained from Hoffman.          (Id. at 193.)   Deputy Verhoff

testified that Phillips’ home was located very close to Ritter’s home, stating,

“possibly the backyards are catty-corner to each other.” (Id. at 185-186.)

                               Motion for Acquittal

       {¶27} At the end of the State’s case in chief, the defense moved for an

acquittal pursuant to Crim.R. 29, asserting that the State had not put forth enough

evidence to sustain a conviction. (Tr. at 242.) The trial court overruled the motion

and the defense proceeded with its case in chief.

                            Defendant’s Case in Chief

                                  Richard Siefert

       {¶28} Siefert testified that he had known Phillips for over twenty years; he

also knew Phillips’ father. (Id. at 246-247.) He lived by Phillips’ house in April

2012. On April 4, 2012, Siefert came home from work at about 1:00 a.m. and


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stayed up for the rest of the night. (Id. at 248.) He was outside of his house at

around 6:00 in the morning, waiting to take his son to his brother-in-law. (Id. at

247-249.) He testified that “[t]he windows had frosted that morning, so [he] went

out and started the truck about 20 till 6.” (Id. at 249.) It was dark outside and he

was standing about 75-80 feet away from Phillips’ house. (Id. at 250, 252-253.)

Siefert testified, “I looked up because the lights are never on over there that early

in the morning. That morning they were on.” (Id. at 249.) He saw Phillips

“walking from the fridge to the kitchen table putting stuff on the table like he was

getting something to eat that morning.” (Id. at 249-250.) This was at about 5:40

in the morning. (Id. at 250.) He also saw Phillips’ mother and sister at the kitchen

table. (Id.) Siefert further testified that as he was getting into his vehicle at about

6:05 that morning, he saw Phillips on the front porch of his house letting the dogs

out, and he waved to him. (Id. at 249-250.)

       {¶29} The defense admitted into evidence a photograph depicting Phillips’

house in the early morning hours, as seen from where Siefert was standing in the

morning on April 4, 2012, which was a reasonable depiction of the lighting

conditions on the date. (Id. at 251-253, 257; Def.’s Ex. A.) The photograph

visibly showed Phillips standing in his kitchen, where the lights were on,

illustrating for the jury Siefert’s ability to observe into Phillips’ kitchen without

obstructions. (Id.)


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       {¶30} After observing the scene, Siefert left his home around 6:00 or 6:05

a.m. and drove to his brother-in-law’s home. (Id. at 248, 253-254.) As he drove

his ’91 Chevy pickup truck down Crabapple Drive, he saw two men “coming

across the field from Crabapple and the old Snyder Park over to the new one.” (Id.

at 253-254.) Siefert recognized one of the men due to his considerable size, and

identified him as Jeremy Ritter. (Id. at 254-255.) As he was driving “uptown,” he

saw “all the police officers headed down toward the house and the area there.”

(Id. at 254.) He dropped off his son and after he got back on the road about fifteen

minutes later, he saw a police officer and told him about the two men he had seen,

identifying one of them as Ritter. (Id. at 254-255.) He also told the officer that

the two men “went right down to Jeremy’s house.” (Id. at 255.) He went home

after that and saw Phillips and his father loading their pickup truck. (Id. at 255-

256.) He went to bed after that. (Id. at 256.)

       {¶31} Following the event, Siefert was contacted by the police with a

request to fill out a report regarding his statements to the police officer on April 4,

2012. (Id. at 256.) He responded, “I told you everything I know. I’ll think about

filling it out.” (Id.) Siefert testified that when the police came again to ask about

the report, “it made [him] mad, so [he] didn’t fill it out.” (Id. at 256.)

       {¶32} On cross-examination, Siefert stated that he had known about

Phillips facing burglary charges since August 2012, when he had seen it in the


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papers. (Id. at 260.) In spite of that, he never contacted the law enforcement to

tell them that he had seen Phillips that morning in his house. (Id.)

                                   Roger Phillips

       {¶33} Defendant’s father, Roger Phillips (“Roger”), testified that he ran a

lawn and snowplow service, in which he employed his son. (Id. at 262-263.) He

admitted that he and his son had been to the Turnbell residence numerous times,

but the last time they worked there was about five years prior to trial. (Id. at 270-

271, 273.) Roger confirmed that Phillips was friends with Hoffman and Ritter, but

he denied ever speaking with either Hoffman or Ritter personally. (Id. at 270.)

       {¶34} Roger testified that on April 4, 2012, he got up shortly after five in

the morning and woke up Phillips, who was sleeping in his bedroom, so they could

get ready for work. (Id. at 263, 273.) His wife and his daughter, Tammy Risner,

were up that morning when he woke up. (Id. at 272.) Roger testified that Phillips

did not leave the house at all between waking up and packing the pickup truck to

go to work. (Id. at 273.) Later that morning, Roger noticed multiple police

cruisers “going up and down the side streets and [his] street.” (Id. at 263.)

       {¶35} Roger testified that in the morning of April 4, 2012, he and Phillips

mowed all athletic fields at Hopewell Loudon School, which was about 17 acres.

(Id. at 265-268.) Roger testified that it took approximately 35 to 40 minutes to get

there from his house and it was an all-day job, which had to be started “as close to


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7 o’clock as possible.” (Id.) Although he did not know for certain what time he

got to Hopewell that morning, he stated that they always started there at around

7:00. (Id. at 271.) An invoice depicting charges for mowing Hopewell Loudon

School by Roger’s business that day was submitted into evidence. (Id. at 265-268;

Ex. B.) On cross-examination, Roger acknowledged that the invoice submitted as

Exhibit B did not have any times on it and that the times given by him in his

testimony were approximate. (Id. at 269.)

        {¶36} Roger admitted that he never explained to law enforcement what his

son did on April 4, 2012. (Id. at 270.) He did not prepare any written statements

about the events of that day. (Id.)

                                  Brenda Phillips

        {¶37} Brenda Phillips (“Brenda”), defendant’s mother, testified that she

assisted Roger in bookkeeping for his business and preached at a Christian radio

station about once a month. (Id. at 274-275.) She had prepared the invoice that

was submitted as Exhibit B. (Id. at 275-276.) Brenda testified that Phillips was

about 5’10” tall and he weighed about 140 pounds. (Id. at 281.) He worked with

his father every day in the lawn care service. (Id. at 280.) Brenda confirmed that

Mrs. Turnbell had been a customer of her husband’s business in the past. (Id. at

280.)




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       {¶38} Brenda remembered the morning of April 4, 2012, because there had

been a lot of police around the area that morning. (Id. at 279.) She testified that

on the night of April 3, 2012, her family had a “game night” and multiple people

participated until late, including her niece Randy Guzman, her daughter Tammy,

her daughter Chelsea, and Phillips, who was home that night. (Id. at 276-277.)

Brenda testified that Phillips went to bed for a couple of hours, but she was still

up, playing games when he got up a little after five in the morning. (Id. at 277.)

She testified that Phillips came to the table and had his breakfast; he also let the

dogs out that morning. (Id. at 278.) After that, he got dressed and went to load the

equipment on the truck. (Id. at 279.)

       {¶39} On cross-examination, Brenda confirmed that there were about two

hours during the night, when Phillips was not involved in the games. (Id. at 282.)

She explained that he went to his bedroom and could not have left the house

without her seeing him. (Id. at 283.) When asked by the State, Brenda confirmed

that her husband was convicted of felony theft in January 2005. (Id. at 283.)

                                 State’s Rebuttal

       {¶40} After Brenda’s testimony, the defense renewed its motion for

acquittal, which was denied. The defense then rested and the State presented

rebuttal witnesses.




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                                 Tamara J. Risner

       {¶41} Tamara J. Risner (“Tamara”), Phillip’s sister, confirmed that she was

at Phillips’ parents’ residence in the early morning hours of April 4, 2012. (Id. at

285-286.) She testified that Phillips came home around 2:00 or 3:00 o’clock in the

morning wearing a gray sweatshirt and saying that he had been at Ritter’s. (Id. at

286.) She claimed that Phillips was home for the rest of the night and she did not

see him leave again. (Id. at 288.) Tamara remembered being interviewed by

Lieutenant Frey and Angela Fultz, but denied telling them that Phillips “came

running into the front door of the house” in the middle of the night or early

morning hours. (Id. at 287.) She denied telling them that Phillips “was sweating,

his hair was wet, and that he had sweat running down his face.” (Id. at 289.)

                              Lieutenant Todd Frey

       {¶42} Lieutenant Todd Frey (“Lieutenant Frey”), from the Wyandot

County Sheriff’s office, testified that he had interviewed Tamara about the events

of April 4, 2012. (Id. at 289-290.) He prepared a written report concerning that

interview, which he had brought with him to the stand. (Id. at 290.) During the

interview with Lieutenant Frey Tamara did not specifically mention the times 2:00

or 3:00 a.m., but she stated that Phillips “had come in the door, front door” in the

middle of the night or early morning hours of April 4, 2012. (Id.) According to

the report, Phillips “had sweat running down his face” and “his hair was wet.”


                                       - 20 -
Case No. 16-13-09


(Id.) Phillips told her that he had come from Ritter’s house and he then went to his

bedroom. (Id. at 290-291.) After that, “she observed cops go by the house.” (Id.

at 291.)

                                  Deputy Verhoff

       {¶43} Deputy Verhoff testified again and explained that he had come into

contact with Siefert between approximately 6:25 and 6:30, after he had responded

to the call about the burglary at 6:19 a.m. (Id. at 293.) Siefert was coming from

the direction of his home, rather than going toward his home at that time. (Id.)

Deputy Verhoff also stated that he had not observed any frost on windshields or

the grass in the morning of April 4, 2012. (Id. at 294.)

                                    Eric Risner

       {¶44} Eric Risner (“Eric”), Phillips’ brother-in-law, was allowed to testify

for the purpose of impeachment. He heard his wife Tamara talk about that night,

saying that Phillips was sweating and that “he was probably out jogging.” (Id. at

297-298.) He observed Phillips burning “a little brown bag” the following day on

the porch. (Id. at 298.) Several days later, he observed Roger carrying out “stuff

that was wrapped up in a tablecloth,” which he described as “big things.” (Id.)

                              Rebuttal by the Defense

       {¶45} Roger was called by the defense and asked whether he remembered

carrying anything out with tablecloth or moving any big objects around April 4


                                       - 21 -
Case No. 16-13-09


through 7, 2012. (Id. at 300.) Roger denied doing anything like that. (Id.) Roger

stated that he used to have guns in the home in the past, “but not for the last ten

years.” (Id.) Although he had a gun cabinet, it was empty and just used as

storage. (Id. at 301.)

                Conclusion of the Trial and Post-Trial Proceedings

       {¶46} The defense renewed its motion for acquittal, which was again

denied by the trial court. The jury returned a unanimous verdict, finding Phillips

guilty of aggravated burglary.     (R. at 71.)   The court ordered a presentence

investigation and continued the matter for sentencing. (R. at 73.)

       {¶47} Before the sentencing in this case occurred, Phillips filed “Motion for

Judgment of Acquittal Rule 29 or in the Alternative Rule 33 Motion for New

Trial.” (R. at 77.) This document was filed by Phillips pro se, although it does not

appear that attorney Merle Dech had been discharged at that point. (See R. at 75.)

As evidence in support of his motion, Phillips attached several documents that had

not been submitted into evidence previously.

       {¶48} Attorney Dech withdrew as counsel of record in this matter and

Phillips filed multiple other documents pro se. (See R. at 81, Ex. A; R. at 88, 89.)

He included additional exhibits, including letters, statements, and affidavits, which

had not been provided to the trial court before, and which concerned alleged




                                       - 22 -
Case No. 16-13-09


irregularities during proceedings in the trial court.1 (See, e.g., R. at 81, Ex. A; R.

at 90, Ex. B, C.) The trial court assigned Phillips’ motions for a hearing and

appointed another attorney, Shane Leuthold, to represent Phillips at the hearing.

(See R. at 95, 97.)

         {¶49} On August 19, 2013, the trial court conducted a hearing on Phillips’

motion for acquittal and the alternative motion for a new trial. The trial court

denied both motions and sentenced Phillips to eight years in prison. (R. at 110.)

From that ruling Phillips now appeals raising the following as his assignments of

error.

         FIRST ASSIGNMENT OF ERROR: THERE                                                WAS
         INSUFFICIENT   EVIDENCE  TO   SUSTAIN                                           THE
         CONVICTION OF AGGRAVATED BURGLARY

         SECOND ASSIGNMENT OF ERROR: THE CONVICTION
         [FOR] AGGRAVATED BURGULARY [sic] WAS AGAINST
         THE MANIFEST WEIGHT OF THE EVIDENCE

         THIRD ASSIGNMENT OF ERROR: COUNSEL FOR THE
         DEFENDANT PROVIDED INEFFECTIVE ASSISTANCE OF
         COUNSEL

         FOURTH ASSINGMENT [sic] OF ERROR: THE COURT
         ERRED BY OVERRULING THE APPELLANT’S MOTION
         FOR RULE 29 DIRECTED AQUITTAL [sic]

         FIFTH ASSINGMENT [sic] OF ERROR: THE COURT
         ERRED BY OVERRULING THE DEFENDANT’S MOTION


1
  Not all of the arguments made in Phillips’ trial court motions are before us on appeal. Therefore, we
express no opinion on the arguments concerning irregularities at the arraignment, jury selection, and the
trial, which were alleged in the trial court’s motions but are not raised here.

                                                 - 23 -
Case No. 16-13-09


       FOR NEW TRIAL PURSUANT TO CRIMINAL RULE OF
       PROCEDURE 33

       SIXTH ASSINGMENT [sic] OF ERROR: THE TRIAL COURT
       ERRED BY SENTENCING THE APPELLANT TO A TERM
       OF INCARCERATION OF EIGHT YEARS AND TRIAL
       TAXED HIM FOR EXERCISNG [sic] HIS RIGHT TO A JURY
       TRIAL

           1. First Assignment of Error—Sufficiency of the Evidence

       {¶50} In his first assignment of error, Phillips asserts that the evidence was

insufficient to convict him of aggravated burglary. Under the indictment filed in

this case, the State was required to prove that on or about the fourth day of April

2012, Phillips by force, stealth, or deception, trespassed, by knowingly entering or

remaining on the land or premises of Mrs. Turnbell, without privilege, when Mrs.

Turnbell was present, with purpose to commit a criminal offense there, and that

Phillips inflicted, or attempted or threatened to inflict physical harm on Mrs.

Turnbell. (R. at 1, Indictment.) Phillips does not challenge all of the elements of

the crime at issue. In this assignment of error Phillips only challenges the element

concerning infliction and attempt or threat to inflict physical harm, as required by

the indictment and by R.C. 2911.11(A)(1). Arguing that there is no evidence of

any threat taking place, Phillips claims that the aggravating element is missing and

demands reversal of his conviction.

       {¶51} When reviewing a criminal case for the sufficiency of the evidence,

“our inquiry focuses primarily upon the adequacy of the evidence; that is, whether

                                       - 24 -
Case No. 16-13-09


the evidence submitted at trial, if believed, could reasonably support a finding of

guilt beyond a reasonable doubt.” In re Willcox, 3d Dist. Hancock No. 5-11-08,

2011-Ohio-3896, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). We look at the evidence in the light “most favorable to the

prosecution” and we will affirm the conviction if “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118.

Importantly, this test raises a question of law and does not allow us to weigh the

evidence. In re Willcox at ¶ 10. “In essence, sufficiency is a test of adequacy”—

i.e., whether the evidence is legally sufficient to sustain a verdict as a matter of

law. Thompkins, 78 Ohio St.3d at 386.

       {¶52} Phillips relies on the parts of Mrs. Turnbell’s testimony where she

quoted the intruder as saying that he was not going to hurt her, to argue that there

can be no finding of threat. He asserts that the intruder’s assurances that he was

not going to hurt Mrs. Turnbell contradict the threat element. For that reason, he

argues that the evidence was insufficient to convince an average mind beyond a

reasonable doubt that the threat of harm occurred.

       {¶53} Nevertheless, Mrs. Turnbell testified that the intruder kept his gun

constantly in her view and asked her for the money. The Ohio Supreme Court has

recognized that,


                                       - 25 -
Case No. 16-13-09


      [o]ne cannot display, brandish, indicate possession of, or use a
      deadly weapon in the context of committing a theft offense without
      conveying an implied threat to inflict physical harm. It is the very act
      of displaying, brandishing, indicating possession, or using the
      weapon that constitutes the threat to inflict harm because it
      intimidates the victim into complying with the command to
      relinquish property without consent.

State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 23.

Therefore, for the purpose of conviction for aggravated burglary a defendant’s act

of brandishing a weapon “is legally sufficient to support the jury’s finding of a

threat of physical harm.” State v. Brewer, 2d Dist. Montgomery No. 24109, 2011-

Ohio-2966, ¶ 14. The fact that the defendant subsequently assures the victim that

they will not hurt her, “does not negate the existence of the threat,” because

“[o]nce [the defendant] brandished the weapon, a threat to inflict physical harm

had occurred.” Id.

      {¶54} Further in support of the threat element, Hoffman and Ritter both

testified that they had heard the orders given to Mrs. Turnbell and heard her

scream. (Id. at 157, 167, 212, 219-221.) Ritter specifically testified that he had

heard a scream and a yell “put your hands up,” although he did not know whose

voice it was. (Id. at 157.) He also heard someone say “Get the fuck down.” (Id.

167.) Hoffman heard someone yell “Freeze bitch” and he heard Mrs. Turnbell

scream. (Id. at 220-221.)




                                       - 26 -
Case No. 16-13-09


       {¶55} Therefore, there is sufficient evidence to conclude that the intruder

brandished a weapon at Mrs. Turnbell and otherwise intimidated her into being

submissive. The intruder’s actions, as described by the State’s witnesses, and

viewed in the light most favorable to the prosecution, can certainly be construed as

threatening Mrs. Turnbell with physical harm, in spite of his assurances to the

contrary.

       {¶56} We recognize that Mrs. Turnbell never identified Phillips as the

intruder who brandished the weapon at her. Yet, both Hoffman and Ritter testified

that Phillips was the third person in Mrs. Turnbell’s house on the night in question

and no other people were alleged to be present during the encounter with Mrs.

Turnbell. (Trial Tr. at 149, 156, 210, 212.) Both accomplices testified that

Phillips had a gun going into Mrs. Turnbell’s residence. Hoffman testified that

Phillips had the black BB gun going into the burglary. (Id. at 212, 219.) There

was also testimony of Phillips’ acquaintance, Kyle Shaw, who had sold Phillips

the black BB gun, which looked like a semi-automatic pistol, sometime in the end

of March or early April 2012. (Id. at 176.)

       {¶57} Furthermore, although the State did not provide the three men’s

physical descriptions, the trial court pointed out that the jury was able to view

them and recognize that neither Hoffman nor Ritter matched the description of the

intruder given by Mrs. Turnbell. (See R. at 110, J. Entry, Aug. 22, 2013.) Mrs.


                                       - 27 -
Case No. 16-13-09


Turnbell described the intruder as being approximately 5 feet and 6 inches tall and

weighing about 155 or 160 pounds, although she initially claimed that the weight

was something about 180 pounds. In his testimony, Hoffman acknowledged that

Ritter is “kind of a big guy,” while he (Hoffman) is “a little bit lighter.” (Id. at

227-228.) Under the standard for reviewing sufficiency of the evidence, looking

at the evidence in the light most favorable to the prosecution, this provided

sufficient evidence for the jury to conclude that Phillips was the person

brandishing a weapon in Mrs. Turnbell’s house and otherwise threatening her on

April 4, 2012.

       {¶58} For all of the above reasons, we overrule Phillips’ first assignment of

error, which challenges the sufficiency of the evidence for the threat of harm

element of aggravated burglary.

                    2. Second Assignment of Error—Manifest
                             Weight of the Evidence

       {¶59} In this assignment of error, Phillips does not dispute any of the

elements of aggravated burglary. Rather, he claims that because of his multiple

alibi witnesses, doubtful credibility of the State’s witnesses, and lack of physical

evidence placing him on the scene, the jury could not have reasonably found him

guilty beyond a reasonable doubt. Here, Phillips challenges his involvement in

this crime as being against the manifest weight of the evidence.



                                       - 28 -
Case No. 16-13-09


       {¶60} The question of manifest weight of the evidence concerns an “effect

in inducing belief.” Thompkins, 78 Ohio St.3d at 387. Therefore, it is not subject

to a mathematical analysis. Id. When reviewing a conviction challenged for the

manifest weight of the evidence, an appellate court acts as a “thirteenth juror” and

may disagree with the jury’s resolution of the conflicting testimony. Id., quoting

Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But the

appellate court must give due deference to the findings of the jury, because

       [t]he fact-finder occupies a superior position in determining
       credibility. The fact-finder can hear and see as well as observe the
       body language, evaluate voice inflections, observe hand gestures,
       perceive the interplay between the witness and the examiner, and
       watch the witness’s reaction to exhibits and the like. Determining
       credibility from a sterile transcript is a Herculean endeavor. A
       reviewing court must, therefore, accord due deference to the
       credibility determinations made by the fact-finder.

(Alteration omitted.) State v. Dailey, 3d Dist. Crawford, No. 3-07-23, 2008-Ohio-

274, ¶ 7, quoting State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456

(8th Dist.1998). Therefore, an argument that a conviction is against the manifest

weight of the evidence will only succeed if the appellate court finds that “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.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).



                                       - 29 -
Case No. 16-13-09


       {¶61} Both sides presented evidence relevant to the issue of Phillips’

involvement in the crime and his presence at Mrs. Turnbell’s residence on the

night in question. As cited above, the State provided evidence implicating Phillips

in the crime through the testimony of Hoffman and Ritter. The two gave details of

the crime, which were in many ways consistent with the testimony of Mrs.

Turnbell and with the results of the investigation conducted by the police.

       {¶62} Phillips points to some irregularities in Hoffman and Ritter’s

depictions of the crime, such as the discrepancy regarding whether Hoffman had a

gun or whether he waited for Ritter behind the shed. (App’t Br. at 7-8.) Yet, in

spite of the variations in Hoffman and Ritter’s testimony in describing some

details of the crime, both were consistent in stating that Phillips told them about

the money in Mrs. Turnbell’s residence, that Phillips was with them that night and

he had a gun, that Phillips and Hoffman entered Mrs. Turnbell’s house while

Ritter waited in the garage, and that Phillips stayed in Mrs. Turnbell’s residence

after the two had fled. (Trial Tr. at 149-151, 153-156, 158-159, 212, 215-216,

219, 222.) The jury was allowed to sort through the evidence and determine

whether in view of the prior criminal history of the witnesses and the

discrepancies in their testimony, Hoffman and Ritter’s statements about Phillips’

involvement in the crime were believable. Unlike us, the jurors heard and saw

Hoffman and Ritter at trial and had additional indicia of the witnesses’


                                       - 30 -
Case No. 16-13-09


truthfulness, such as their behavior at trial, “body language,” “voice inflections,”

“hand gestures,” “interplay between the witness and the examiner,” and their

“reaction to exhibits and the like.” Dailey, 2008-Ohio-274, at ¶ 7. We do not find

that the discrepancies in the two accomplices’ testimonies were so significant as to

render their statements utterly unreliable and the jury’s reliance on them,

unreasonable.

       {¶63} Phillips alleges that Hoffman and Ritter could not be trusted because

they had criminal records and “were willing to lie and say whatever they could to

get a good deal.” (App’t Br. at 6.) We note that the jury was instructed that

Hoffman and Ritter’s testimony “should be viewed with great suspicion and

weighed with great caution.” (Trail Tr. at 343.) The trial court further instructed

the jury that they were “not required to believe the testimony of any witness

simply because he or she was under oath” and that they had to “determine what

testimony is worthy of belief and what testimony is not worthy of belief.” (Id. at

342.) It does not appear that the jury disregarded these instructions.

       {¶64} Hoffman and Ritter’s testimony regarding Phillips’ involvement in

the crime was corroborated by other witnesses. For example, Shaw testified that

he had sold Phillips a BB gun shortly before the burglary. Tamara stated that

Phillips came home in the early morning hours on April 4, 2012, saying that he

had been at Ritter’s house.      Lieutenant Frey testified about Tamara’s prior


                                       - 31 -
Case No. 16-13-09


statement that Phillips had come home that night sweaty, shortly before the police

went by their house. Mrs. Turnbell testified about the height and weight of the

intruder. Those features were similar to Phillips’ characteristics, as given by

Phillips’ mother. Furthermore, as noted by the trial court, the jury could observe

Phillips and consider whether his appearance matched the descriptions given by

Mrs. Turnbell. (See R. at 110, at 3.)

       {¶65} Phillips further argues that the evidence at trial contradicted Hoffman

and Ritter’s testimony about his involvement in the crime. For example, Mrs.

Turnbell saw only one intruder and Siefert saw only two individuals coming from

Crabapple Drive on the night in question. Apart from Hoffman and Ritter, no

other witness attested to three individuals being involved in the crime. He claims

that the police investigation did not reveal involvement of a third individual either,

because there were only two sets of foot tracks leading from Mrs. Turnbell’s

house. He emphasizes the fact that no physical evidence places him on the crime

scene. While multiple pieces of evidence pointed to Hoffman being present at

Mrs. Turnbell’s house, and a witness saw Ritter close to the crime scene, nothing

implicated Phillips, other than the testimony of the two criminals. He further

points to the fact that the forensic tests only found Hoffman’s DNA on the Red

Bull can, although Hoffman testified that Phillips had drunk from it too.




                                        - 32 -
Case No. 16-13-09


       {¶66} Nevertheless, there was circumstantial evidence corroborating

Hoffman and Ritter’s testimony, as detailed above. Furthermore, the front door

found open after the burglary corroborates Hoffman and Ritter’s statements that

Hoffman ran through the front door; while the two sets of foot tracks leading from

the garage indicate that two more individuals used that avenue of escape, showing

that there were at least three intruders in Mrs. Turnbell’s house. “Circumstantial

evidence and direct evidence have the same probative value.” State v. Adams, 3d

Dist. Crawford No. 3-06-24, 2007-Ohio-4932, ¶ 21, citing State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. Therefore,

while the jury was allowed to infer a reasonable doubt from the lack of direct

physical evidence placing Phillips on the scene, its reliance on Hoffman and

Ritter’s testimony and on the circumstantial evidence to infer Phillips’

involvement in the crime beyond a reasonable doubt was not prohibited.

       {¶67} Phillips claims that he had multiple alibi witnesses—Siefert and his

parents saw him at home during the time when the burglary was taking place.

(App’t Br. at 9.) Nevertheless, as the State pointed out to the jury, all three of

these witnesses waited until the day of trial to disclose the alibi, rather than make

the statements to the police earlier to exculpate Phillips, even though they knew

that Phillips had been charged with this crime in August 2012.




                                       - 33 -
Case No. 16-13-09


       {¶68} Phillips argues that Siefert and his family members’ statements were

more credible than Hoffman and Ritter’s. Nevertheless, Siefert’s testimony, or at

least his recollection of the order and timing of the events, was called into question

by the statements of Deputy Verhoff, who stated that Siefert was coming from the

direction of his home, rather than going toward his home at the time when he

talked to him at about 6:30 in the morning. Deputy Verhoff also contradicted

Siefert’s claim that there was frost on the windshields on the morning of April 4,

2012, which would require Siefert to go outside of his house twenty minutes prior

to 6:00 a.m. to warm up his car. Siefert’s refusal to make a written statement to

the police, in spite of multiple requests to do so, might also have affected the

jury’s receptiveness to his testimony at trial.

       {¶69} Roger and Brenda’s testimony that Phillips was at home all night

was directly contradicted by their daughter Tamara’s testimony, who saw Phillips

come home from Ritter’s house at some time in the early morning hours of April

4, 2012. In turn, Tamara’s testimony that Phillips was home on April 4, 2012,

since around 2:00 or 3:00 in the morning, was undermined by Lieutenant Frey and

her husband Eric, both testifying that Tamara gave prior inconsistent statements

about that night. Roger’s credibility was undermined in other ways as well. Ritter

claimed that he had met with Roger and talked to him about the crime, but Roger




                                         - 34 -
Case No. 16-13-09


testified that he had never talked to Ritter. Roger’s wife indicated that Roger had

a prior felony theft conviction.

       {¶70} Although Phillips claims that his witnesses were more credible than

Hoffman and Ritter, we do not find that the jury lost its way in believing Hoffman

and Ritter rather than Siefert, Roger, and Brenda. The jury, as the trier of facts,

“may believe or disbelieve any witness or accept part of what a witness says and

reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State

v. Davis, 3d Dist. No. 9-06-56, 2007-Ohio-4741, ¶ 40.         The alibi testimony

presented by defense witnesses was undermined in multiple ways, while Hoffman

and Ritter’s testimony regarding Phillips’ participation in the burglary was

corroborated by other evidence and by Tamara and Eric’s testimony.

       {¶71} Phillips claims that he could not have committed the crime because

he went to work at Hopewell Loudon School, which was located about 35-40

minutes away from Phillips’ house, and that he left shortly after 6:00 to be there

by 7:00 a.m. Nevertheless, an invoice introduced as a proof of this fact merely

showed that Roger’s business performed yard work at Hopewell Loudon School

on April 4, 2012. The invoice did not exhibit the time at which the work started

and it did not show that Phillips was actually the person performing the work on

that day.   Furthermore, the invoice was prepared by Phillips’ mother, whose

credibility was undermined by her own daughter’s testimony. In addition, the


                                       - 35 -
Case No. 16-13-09


invoice, even if believed by the jury, did not contradict their finding that Phillips

was at Mrs. Turnbell’s residence prior to 6:19 a.m. Phillips could have been

involved in the burglary, which had occurred prior to 6:19 a.m., when it was

reported to Deputy Verhoff, and still have gone to Hopewell Loudon School,

which was located about 35-40 minutes away, to work there at approximately 7:00

a.m.

       {¶72} Although the trial transcript shows many deficiencies in both parties’

versions of events, we cannot say that the jury clearly lost its way in resolving

conflicts in evidence and finding that Phillips was involved in the burglary of Mrs.

Turnbell’s residence.    Therefore, the conviction was not against the manifest

weight of the evidence and the second assignment of error is overruled.

                    3. Third Assignment of Error—Ineffective
                              Assistance of Counsel

       {¶73} In his third assignment of error, Phillips asserts that his trial counsel,

Mr. Dech, was ineffective in several respects, which we discuss separately below

in parts a-c of this assignment of error.        In order to prevail on a claim of

ineffective assistance of counsel, a criminal defendant must first show that the

counsel’s performance was deficient in that it fell “below an objective standard of

reasonable representation.” State v. Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47

(1997).   Second, the defendant must show “that the deficient performance

prejudiced the defense so as to deprive the defendant of a fair trial.” Id., citing

                                        - 36 -
Case No. 16-13-09


Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). In order to demonstrate prejudice, the defendant must prove a reasonable

probability that the result of the trial would have been different but for his or her

counsel’s errors. Id. In applying these standards, the court must “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751,

772 N.E.2d 81, ¶ 108, quoting Strickland, 466 U.S. at 669. Therefore, the court

must be highly deferential in its scrutiny of counsel’s performance.        State v.

Walker, 90 Ohio App.3d 352, 359, 629 N.E.2d 471 (3d Dist.1993), quoting

Strickland, 466 U.S. at 689.

                           a. Failure to Remove a Juror

       {¶74} As his first claim under this assignment of error, Phillips alleges that

his counsel was ineffective by failing to remove a member of the jury. During the

examination of the jury, the prosecutor asked many questions, including whether

anyone of the prospective jurors had done any investigation on their own or had

heard anything about this case. (Trial Tr. at 33-34.) The prosecutor then read a

list of potential witnesses in the case, asking whether any of the jurors knew the

witnesses and whether they would be able to judge their testimony impartially and

fairly. (Id. at 36.) The defense counsel asked, among others, whether the jury

would follow the instructions of the trial court and consider the case carefully,


                                       - 37 -
Case No. 16-13-09


holding the State to its burden of proof, and whether they could be fair jurors to

Phillips as well as to the State. (Id. at 48, 51.) After the defense had exercised all

of its peremptory challenges, Ms. Lynn Payton was called in to the jury box. The

trial court and the two attorneys had an opportunity to question her as a

prospective juror. The following exchange occurred:

       THE COURT: Lynn, now that you’re up there, do you wish you
       would have responded to any of the questions?
       MS. PAYTON: No.
       THE COURT: Okay. Mr. Miller.
       MR. MILLER: Ms. Payton, can you judge this case and base a
       verdict on the evidence that you here [sic] within the four walls of
       this courtroom?
       MS. PAYTON: Yes.
       MR. MILLER: Nothing further.
       THE COURT: Mr. Dech.
       MR. DECH: Thank you. Ms. Payton, do you feel you could be a fair
       and impartial juror in this case?
       MS. PAYTON: I do.
       MR. DECH: And if we were to reverse the roles, would you want
       someone in your present mental disposition to sit as a juror in this
       case?
       MS. PAYTON: Sure.
       MR. DECH: Okay. And you’ll uphold the State of Ohio to its
       burden of proof?
       MS. PAYTON: Yes.
       MR. DECH: And if they don’t prove this case beyond a reasonable
       doubt, your finding must be not guilty. You can follow that?
       MS. PAYTON: Yes, I can.
       MR. DECH: Okay. If you see anybody, can you say—if you make a
       finding of not guilty, you’ll stand by it; you wouldn’t be reluctant
       about it?
       MS. PAYTON: Yes.
       MR. DECH: Okay. Is there any reason you would not be a fair and
       impartial juror in this case?
       MS. PAYTON: No.

                                        - 38 -
Case No. 16-13-09


       MR. DECH: Okay. Thank you.
       THE COURT: Ms. Payton I would be remiss if I did not bring this
       out. You work in the Clerk of Court’s office, correct?
       MS. PAYTON: Yes, I do.
       THE COURT: Papers involving this case have been filed through
       that office?
       MS. PAYTON: I’m involved in the paper flow, yes.
       THE COURT: Has there been anything that has come through your
       hands about this case or been said about this case in your presence
       that sticks with you that would influence you one way or the other?
       MS. PAYTON: I don’t believe so.
       THE COURT: So you’re assuring us you could be fair and
       impartial?
       MS. PAYTON: I think so.
       THE COURT: Okay. Pass for cause?
       MR. MILLER: Yes, Your honor.
       THE COURT: Mr. Dech?
       MR. DECH: I pass for cause, too.

(Id. at 68:6-70:13.)

       {¶75} In his brief, Phillips speculates that the defense counsel did not know

about Ms. Payton’s occupation prior to the trial judge bringing it to his attention

and that Ms. Payton “chose to withhold this information.” (See App’t Br. at 11-

12.) The record does not support this speculation. Nevertheless, even assuming

that the defense counsel was indeed unaware of Ms. Payton’s employment at the

Clerk of Court’s office and that his performance was deficient for not informing

himself about her occupation ahead of time, there is no prejudice alleged or shown

by this fact. The trial court disclosed Ms. Payton’s occupation in open court and

the defense counsel had an opportunity to question her about her ability to judge

this case.

                                       - 39 -
Case No. 16-13-09


       {¶76} Phillips alleges that the trial counsel “didn’t even notice that Lynn

Payton had affixed her signature on the indictment itself,” to certify that it was “a

full, true and correct copy of the original Indictment.” (App’t Br. at 13; id. Ex. A.)

We note that the indictment provided in the record does not have Ms. Payton’s

signature affixed to it. (R. at 1.) Yet, assuming that Ms. Payton’s signature did

appear on the indictment’s certification, there is no support for the allegation that

the trial counsel “didn’t even notice” it, or that he was deficient in this respect.

Furthermore, as the trial court noted in its judgment entry denying Phillips’

motions for acquittal and for new trial, there could have been no prejudice from

Ms. Payton’s signing of the indictment. (R. at 110, J. Entry at 6-7.) Ms. Payton

attested that she was not familiar with the case. But, even if she had read the

indictment previously, she would not have obtained any knowledge outside of the

record because, as the trial court noted, the indictment was a public record and was

read to the entire jury during the trial. (Id.; Trial Tr. at 344-345.)

       {¶77} Phillips alleges that the defense counsel was ineffective “for not at

least trying to have [Ms. Payton] removed for cause.” (App’t Br. at 13.) In order

to win a challenge based on ineffective assistance due to the trial counsel’s failure

to “at least try” to remove Ms. Payton for cause, Phillips would have to show (1)

the trial counsel’s failure to “at least try” fell below an objective standard of

reasonable representation. See Keith, 79 Ohio St. 3d at 534. He then would have


                                         - 40 -
Case No. 16-13-09


to show a reasonable probability that (2) the result of the trial would have been

different had the trial counsel “at least tried” to remove Ms. Payton for cause. See

id. Phillips fails to do so.

           {¶78} We have previously repeatedly held that a prospective juror will not

be excused from a criminal trial for cause by a virtue of his or her employment

with the State of Ohio where no bias by the juror is shown. State v. Sims, 20 Ohio

App.2d 329, 332, 253 N.E.2d 822 (3d Dist.1969); see also State v. Allsup, 3d Dist.

Hardin No. 6-10-09, 2011-Ohio-404, ¶¶ 46-52. Even the fact that the juror is a

state employee and knows witnesses or attorneys involved in the case does not

render the juror automatically biased against the criminal defendant. State v.

Stockton, 3d Dist. Shelby No. 17-96-15, 1997 WL 232245, *5 (May 5, 1997). In

order to excuse a juror for cause, something more is needed. A list of possible

causes for juror challenges is provided in R.C. 2313.17 and Crim.R. 24.2 Phillips

does not assert that any of those causes existed in this case.


2
    R.C. 2313.17 states,
           (B) The following are good causes for challenge to any person called as a juror:
           (1) That the person has been convicted of a crime that by law renders the person
           disqualified to serve on a jury;
           (2) That the person has an interest in the cause;
           (3) That the person has an action pending between the person and either party;
           (4) That the person formerly was a juror in the same cause;
           (5) That the person is the employer, the employee, or the spouse, parent, son, or daughter
           of the employer or employee, counselor, agent, steward, or attorney of either party;
           (6) That the person is subpoenaed in good faith as a witness in the cause;
           (7) That the person is akin by consanguinity or affinity within the fourth degree to either
           party or to the attorney of either party;
           (8) That the person or the person’s spouse, parent, son, or daughter is a party to another
           action then pending in any court in which an attorney in the cause then on trial is an
           attorney, either for or against any such party to another such action;

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Case No. 16-13-09


        {¶79} Phillips alleges no bias stemming from Ms. Payton’s occupation or

the fact that her signature appeared on the certification to the copy of the original

indictment. Ms. Payton admitted that she was involved in the paper flow in the


        (9) That the person discloses by the person’s answers that the person cannot be a fair and
        impartial juror or will not follow the law as given to the person by the court.
        (C) Each challenge listed in division (B) of this section shall be considered as a principal
        challenge, and its validity tried by the court.
        (D) In addition to the causes listed in division (B) of this section, any petit juror may be
        challenged on suspicion of prejudice against or partiality for either party, or for want of a
        competent knowledge of the English language, or other cause that may render the juror at
        the time an unsuitable juror. The validity of the challenge shall be determined by the
        court and be sustained if the court has any doubt as to the juror's being entirely unbiased.

Crim.R. 24(C) states that a “person called as a juror may be challenged for the following causes:”
        (1) That the juror has been convicted of a crime which by law renders the juror
        disqualified to serve on a jury.
        (2) That the juror is a chronic alcoholic, or drug dependent person.
        (3) That the juror was a member of the grand jury that found the indictment in the case.
        (4) That the juror served on a petit jury drawn in the same cause against the same
        defendant, and the petit jury was discharged after hearing the evidence or rendering a
        verdict on the evidence that was set aside.
        (5) That the juror served as a juror in a civil case brought against the defendant for the
        same act.
        (6) That the juror has an action pending between him or her and the State of Ohio or the
        defendant.
        (7) That the juror or the juror’s spouse is a party to another action then pending in any
        court in which an attorney in the cause then on trial is an attorney, either for or against
        the juror.
        (8) That the juror has been subpoenaed in good faith as a witness in the case.
        (9) That the juror is possessed of a state of mind evincing enmity or bias toward the
        defendant or the state; but no person summoned as a juror shall be disqualified by reason
        of a previously formed or expressed opinion with reference to the guilt or innocence of
        the accused, if the court is satisfied, from the examination of the juror or from other
        evidence, that the juror will render an impartial verdict according to the law and the
        evidence submitted to the jury at the trial.
        (10) That the juror is related by consanguinity or affinity within the fifth degree to the
        person alleged to be injured or attempted to be injured by the offense charged, or to the
        person on whose complaint the prosecution was instituted; or to the defendant.
        (11) That the juror is the person alleged to be injured or attempted to be injured by the
        offense charged, or the person on whose complaint the prosecution was instituted, or the
        defendant.
        (12) That the juror is the employer or employee, or the spouse, parent, son, or daughter of
        the employer or employee, or the counselor, agent, or attorney, of any person included in
        division (C)(11) of this rule.
        (13) That English is not the juror's native language, and the juror’s knowledge of English
        is insufficient to permit the juror to understand the facts and the law in the case.
        (14) That the juror is otherwise unsuitable for any other cause to serve as a juror.

                                                  - 42 -
Case No. 16-13-09


Clerk of Court’s office, but she did not believe that she had been exposed to any

information that would give her special prior knowledge of this case. During the

trial, the court stated for the record that the evidence, which was filed and sealed

by the clerk’s office, was not given to Ms. Payton to file. (Trial Tr. at 189.) The

defense counsel confirmed his understanding of that fact and stipulated to it. (Id.)

       {¶80} The trial counsel could have reasonably relied on Ms. Payton’s

answers to multiple questions from the trial court, the prosecution, and from

himself, where Ms. Payton indicated that she did not know anything about the case

and she could be fair and impartial. Accordingly, the defense counsel’s failure to

“at least try” to remove her for cause is not sufficient to rebut the “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Cassano, 2002-Ohio-3751, at ¶ 108.

       {¶81} Phillips does not provide any law to support even the possibility that

the trial court would have removed Ms. Payton from the jury for cause had

defense counsel requested it. The Second District Court of Appeals was faced

with an allegation of ineffective assistance of counsel were the trial attorney

allowed a juror employed as a deputy clerk in the county’s municipal court to

serve on a jury. State v. McKinney, 80 Ohio App.3d 470, 609 N.E.2d 613 (2d

Dist.1992). That appellate court refused to infer prejudice and bias so as to render

the clerk “an unfit juror,” without any assertion that the clerk had prior knowledge


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Case No. 16-13-09


of the case. Id. at 476-477. Similarly, in spite of the possibility that Ms. Payton

had signed the certification of the indictment in her professional capacity, Phillips

does not allege that she had any prior knowledge of the case. Conversely, the

transcript of the jury voir dire reflects that Ms. Payton was not familiar with the

case.

        {¶82} Moreover, there is no prejudice, alleged or shown, from Ms.

Payton’s participation in the jury deliberations. “Neither the Ohio Rules of Civil

Procedure nor the Ohio Revised Code contains a provision that a court employee

is presumed to be biased as a juror. See R.C. 2313.42 [recodified as RC 2313.17];

Crim.R. 24.” McKinney, 80 Ohio App.3d at 476; accord State v. Saunders, 4th

Dist. Ross No. 1896, 1993 WL 524968, *7-8 (Dec. 1, 1993) (rejecting a claim that

a juror employed as a deputy clerk of courts in the same county’s juvenile court or

a juror employed as assistant to the warden at a correctional institution should

automatically be rendered “biased against a criminal defendant”). The burden of

showing a juror’s bias is upon the challenger. State v. Warner, 55 Ohio St.3d 31,

47, 564 N.E.2d 18 (1990), quoting Reynolds v. United States, 98 U.S. 145, 157, 25

L.Ed. 244 (1878). Phillips does not allege that Ms. Payton’s occupation or her

signature on the certification page for the indictment influenced her or the jury in

any way, resulting in the finding of guilty. The voir dire examination of Ms.

Payton does not reveal any bias or prejudice against Phillips. On the contrary, Ms.


                                       - 44 -
Case No. 16-13-09


Payton repeatedly assured the court, the prosecutor, and the defense counsel that

she could be impartial and that she would follow the law in this case.

       {¶83} Therefore, even if the defense counsel had requested removal of Ms.

Payton for cause, there is no reasonable probability that the trial court would have

granted the request and no reasonable probability that the result of the jury

deliberations would have been different. In view of these facts and the lack of any

indication of bias, we reject Phillips’ argument that his trial counsel was

ineffective by failing to remove Ms. Payton from the jury.

               b. Failure to Request a Copy of Hoffman and Ritter’s
                              Grand Jury Testimony

       {¶84} Phillips argues that his trial counsel was ineffective because he had

not ordered the transcript of Hoffman and Ritter’s grand jury testimony. We reject

this allegation for several reasons.

       {¶85} Phillips does not submit why the grand jury testimony was essential

to his defense and does not even allege that the grand jury testimony would have

revealed anything that would support his acquittal. He argues that the defense

counsel should have requested the grand jury testimony because if he had, the

State would have been required to turn it in under Crim.R. 16. (App’t Br. at 14.)

Of note, Phillips does not allege that the grand jury testimony would have showed

inconsistencies in Hoffman and Ritter’s stories. Rather he suggests that the trial

counsel should have obtained Hoffman and Ritter’s grand jury testimony to

                                       - 45 -
Case No. 16-13-09


“compare it to their original statements to police as well as what they said at trial.”

(Id.)   This statement, in itself, shows that Phillips’ allegation of ineffective

assistance must fail, as the claim that “the result of the trial would have been

different” if the trial counsel had requested the grand jury testimony, is completely

speculative. See Keith, 79 Ohio St. 3d at 534.

        {¶86} Furthermore, the inconsistencies in Hoffman and Ritter’s accounts of

the events on April 4, 2012, were revealed at trial and weighed by the jury. As

stated above, those inconsistencies did not go to the elements of aggravated

burglary or to the issue of Phillips’ involvement in the crime. The jury was

informed that the two accomplices had prior criminal records and were offered

more beneficial sentences in exchange for their testimony against Phillips. The

jury was then instructed on how to weigh their testimony. The claim that the

grand jury testimony would have further undermined their credibility in such a

manner that the jury would have acquitted Phillips does not amount to “a

reasonable probability that the result of the trial would have been different.”

Keith, 79 Ohio St. 3d at 534.

        {¶87} Accordingly, Phillips cannot satisfy a claim of ineffective assistance

of counsel based on the alleged failure to request a copy of the grand jury

testimony.




                                        - 46 -
Case No. 16-13-09


                      c. Failure to Object or Call Witnesses

       {¶88} As his next contention under this assignment of error, Phillips asserts

that the trial counsel should have objected to the State’s question directed to

Brenda about Roger’s 2005 conviction for felony theft. “[F]ailure to object to

error, alone, is not enough to sustain a claim of ineffective assistance.” State v.

Campbell, 69 Ohio St.3d 38, 52-53, 630 N.E.2d 339 (1994), quoting State v.

Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). “Because ‘objections

tend to disrupt the flow of a trial, and are considered technical and bothersome by

the fact-finder,’ competent counsel may reasonably hesitate to object in the jury’s

presence.”    (Alterations omitted.)   Id. at 53, quoting Jacobs, Ohio Evidence

(1989), at iii-iv.

       {¶89} Like with the prior arguments regarding the counsel’s deficiency,

Phillips fails to show how this alleged error deprived him of a fair trial. Even if

the trial counsel had objected to the State’s question and Brenda’s testimony about

Roger’s 2005 conviction had not been heard by the jury, Roger’s truthfulness was

otherwise undermined by Tamara, Eric, and Ritter, who gave statements

contradicting Roger’s various declarations. Roger’s testimony as an alibi witness

was further undermined by the fact that he had waited for months to disclose the

purported alibi, while knowing about his son facing charges for this felony since

August 2012.


                                       - 47 -
Case No. 16-13-09


       {¶90} Under this assignment of error Phillips also claims that his defense

counsel failed to “call important witnesses.” (App’t Br. at 14.) No argument is

provided to support this claim so as to rebut the “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance,” or to show that the result of the trial would have been different if the

trial counsel had called more witnesses, raised more objections, or provided more

evidence. Cassano, 2002-Ohio-3751, at ¶ 108, quoting Strickland, 466 U.S. at

689; Keith, 79 Ohio St. 3d at 534.

       {¶91} For all of the foregoing reasons, Phillips’ third assignment of error is

overruled.

             4. Fourth Assignment of Error—Motion for Acquittal

       {¶92} Phillips’ argument in his fourth assignment of error, states, in its

entirety

       The facts and arguments for a Rule 29 motion for directed acquittal
       have been set forth under the assignments of error for sufficiency
       and manifest weight of the evidence. Appellate counsel incorporates
       those arguments as fully restated herein.

(App’t Br. at 15.) In response to this legal argument, based upon our previous

discussion of the first and second assignment of error, we overrule the fourth

assignment of error.




                                       - 48 -
Case No. 16-13-09


               5. Fifth Assignment of Error—Motion for New Trial

       {¶93} In support of his contention that his motion for new trial should have

been granted, Phillips asserts two grounds under Crim.R. 33: (1) misconduct of the

jury due to the inclusion of Ms. Payton on the jury panel, and (2) prosecutorial

misconduct due to the State allegedly allowing perjured testimony at trial. See

Crim.R. 33(A)(2).

       {¶94} As to the first claim, no misconduct of the jury has been alleged or

proved. We have already discussed above that no basis for excluding Ms. Payton

from the jury has been provided to the trial court and no evidence about Ms.

Payton’s bias or improper effect on the jury has been revealed. With respect to the

second claim, Phillips continues to argue that Hoffman and Ritter lied on the stand

and alleges that the State engaged in misconduct by offering their testimony,

which the State allegedly knew to be false.

       {¶95} The Ohio Supreme Court held that, a prosecutorial misconduct and a

denial of due process occurs when the state knowingly uses false or perjured

testimony “if there is any reasonable likelihood that the false testimony could have

affected the judgment of the jury.” State v. Iacona, 93 Ohio St.3d 83, 97, 752

N.E.2d 937 (2001), quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th

Cir.1989). In order to prove the denial of due process as a result of prosecutorial

misconduct, the defendant must show that “(1) the statement was actually false;


                                       - 49 -
Case No. 16-13-09


(2) the statement was material; and (3) the prosecution knew it was false.” Id.; see

also State v. Snyder, 3d Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 43, quoting

State v. Twyford, 94 Ohio St.3d 340, 355, 763 N.E.2d 122 (2002) (“In assessing

the existence of prosecutorial misconduct, we are mindful that ‘the touchstone of

this analysis is the fairness of the [proceeding], not the culpability of the

prosecutor.’ ”). Under this standard, we hold that there was no due process

violation and Phillips is not entitled to new trial.

       {¶96} On appeal, Phillips does not specify which of the purportedly false

statements were intentionally introduced by the State in spite of its alleged

knowledge that they were not true. His pro se motion in the trial court, however,

alleged that the State engaged in misconduct by failing to impeach Hoffman, who

had supposedly previously stated that he had carried a .32 pistol during the

robbery on Mrs. Turnbell’s residence, but then testified differently at trial. (R. at

77 at 5, 32, 35). We note that there is no evidence that Hoffman or Ritter lied on

the stand. No proof has been introduced that Hoffman did indeed carry a gun into

the burglary or that the State knew about it and allowed Hoffman to testify that he

did not have a gun.




                                         - 50 -
Case No. 16-13-09


        {¶97} Phillips relies on statements that he claims had been made, but were

not before the trial court,3 such as “brag[ging] to a fellow inmate” or giving prior

inconsistent statements in a recorded interview. (R. at 77, at 5, 32; App’t Br. at

17.) These statements, even if true, would not warrant a reversal of Phillips’

conviction because they were not material to his prosecution. The statements did

not concern any of the elements of the crime, or Phillips’ involvement in the

burglary. Although Phillips might argue that pointing out another inconsistency in

Hoffman’s testimony would have resulted in jury’s disbelieving his statement

about Phillips’ involvement in the crime, both accomplices were subject to cross-

examination and were asked about their prior inconsistent statements.                               Their

credibility was challenged multiple times by the defense counsel through pointing

out that they had had prior felony convictions and had agreed to testify against

Phillips in exchange for more beneficial sentences. Hoffman’s testimony that he

did not have a gun during the burglary was undermined by Ritter’s testimony to

the contrary. We therefore cannot say that the State’s failure to correct Hoffman’s

answer regarding his use of a gun during the burglary would have changed the

jury’s evaluation of his credibility. See Iacona, 93 Ohio St.3d at 97 (reaching

similar conclusion where the state failed to correct its witness’s answer that was

contrary to facts).

3
  After trial, Phillips moved to supplement the trial court’s record with CDs of, what he had claimed to be,
interviews of Hoffman and Ritter. (R. at 114.) The trial court denied the request and therefore, this
evidence is not before us. (See J. Entry, Sept. 17, 2013.)

                                                  - 51 -
Case No. 16-13-09


       {¶98} Concluding, Phillips fails to satisfy any of the three elements

required for a new trial based on prosecutorial misconduct and he does not show

any misconduct by the jury. Accordingly, his motion for new trial was properly

denied and his fifth assignment of error is overruled.

              6. Sixth Assignment of Error—Improper Sentencing

       {¶99} In this assignment of error, Phillips does not allege that his sentence

was improper under the statutory guidelines. Rather, he claims that it was too

harsh when compared to the sentences received by Hoffman and Ritter. Phillips

asserts that the circumstances of the crime were the same for all three offenders

and the victim suffered one, indivisible harm as a result of the burglary. He

further highlights the fact that unlike Hoffman and Ritter, he had no prior criminal

record. He contends that in view of these facts, the discrepancy between his

sentence and sentences of his accomplices can only be explained as a “ ‘trial tax[]’

for exercising his constitutional right to a jury trial,” and is unconscionable.

(App’t Br. at 18-19.)

       {¶100} Phillips cites City of Columbus v. Bee, where the Tenth District

Court of Appeals reversed a sentence imposed by the trial court, upon finding that

the lower court had ignored the sentencing guidelines in arbitrarily imposing the

maximum allowed penalty “as a price of ignoring the court’s plea bargaining

recommendation.”        67 Ohio App.2d 65, 425 N.E.2d 409 (10th Dist.1979),


                                       - 52 -
Case No. 16-13-09


paragraph 2 of the syllabus. The facts of Bee were significantly different than

Phillips’ case and his reliance on the opinion of the Tenth District Court of

Appeals in requesting reversal is meritless. In Bee, the trial court participated in

the plea negotiations and indicated “that probation was a possibility if there was a

plea of no contest (and therefore no trial), but would probably not be given if [the

defendant] went to trial and was convicted.” Id. at 74. The defendant “ultimately

received the maximum sentence without any consideration of statutory sentencing

guidelines,” which made it “clear that [she] was penalized for insisting on a trial.”

(Emphasis added.) Id. at 74-75. Here, the record does not reflect that any plea

negotiations took place and no allegations are made that the trial court participated

in such negotiations. Phillips did not receive the maximum sentence for the crime,

which was up to eleven years. R.C. 2929.14. The record reflects that the trial

court did consider the statutory sentencing guidelines. (See, e.g., R. at 109, at 3-4;

Sentencing Tr.) Therefore, there is no support for Phillips’ assertion that his case

is similar to Bee and that he was penalized for going to trial.

       {¶101} We previously rejected an allegation that a trial court was imposing

“a trial tax” when it sentenced a defendant to a longer prison term than the term

given to his companions who pled guilty to the same crime. See State v. Shoe, 3d

Dist. Hancock No. 5-92-12, 1992 WL 380267, *2 (Dec. 16, 1992). In Shoe, we

reiterated the standard for reviewing the trial court’s sentence, holding that “a


                                        - 53 -
Case No. 16-13-09


reviewing court ‘cannot invade the province of the trial court by setting aside a

sentence [imposed within statutory guidelines] if there is no clear showing that the

trial court abused its discretion.’ ” Id., quoting Bee, 67 Ohio App.2d at 77.

Phillips does not allege that his sentence was contrary to the statutory guidelines

and it appears that the record supports the trial court’s analysis of those guidelines.

Accordingly, we follow our reasoning in Shoe and reject Phillips’ contention that

he was “trial taxed” merely because he received a harsher sentence than his

accomplices.

       {¶102} We further note that although Phillips claims that all three offenders

committed the same crime, the record does not reflect whether Hoffman and Ritter

were charged with the same offense, being aggravated burglary, a felony of the

first degree. Hoffman and Ritter’s sentencing transcripts are not before us and we

will not speculate about the trial court’s reasoning when imposing the six-year

prison terms on them.      We note, however, that although all three offenders

participated in the same crime, each of them was involved in a different way.

According to the testimony found by the jury to be true, Phillips was the only one

who actually faced the victim and threatened her by brandishing the weapon in

front of her. He was the only one who did not flee the scene when Mrs. Turnbell

started screaming. Also, as the trial court noted in its sentencing judgment entry,

Phillips “was the only one who had a connection, no matter how remote, to this


                                        - 54 -
Case No. 16-13-09


victim.” (R. at 109, J. Entry at 3.) Therefore, his actions had more serious impact

on Mrs. Turnbell than the actions of Hoffman and Ritter.

       {¶103} Concluding, no facts support Phillips’ contention that he was

penalized for exercising his right to a jury trial. Because no irregularities appear

with respect to Phillips’ sentencing, we hold that the trial court did not abuse its

discretion in sentencing Phillips to eight years in prison and we overrule the sixth

assignment of error.

                                    Conclusion

       {¶104} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued herein. The judgment of the Common Pleas Court of Wyandot County,

Ohio is therefore affirmed.

                                                               Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




                                       - 55 -
