[Cite as State v. Bey, 2019-Ohio-656.]




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


State of Ohio                                   Court of Appeals No. L-17-1043

        Appellee                                Trial Court No. CR0201602438

v.

Theodore Hampton Bey                            DECISION AND JUDGMENT

        Appellant                               Decided: February 22, 2019

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Theodore Hampton Bey, appeals the February 14,

2017 judgment of the Lucas County Court of Common Pleas which, following a jury trial

finding him guilty of burglary, sentenced him to seven years of imprisonment. For the

reasons that follow, we affirm.
       {¶ 2} On August 8, 2016, appellant was indicted on one count of burglary in

violation of R.C. 2911.12(A)(2) and (D), a second-degree felony, with a firearm

specification under R.C. 2941.145. The charge stemmed from the July 29, 2016 break-in

at a residence in Toledo, Lucas County, Ohio. Appellant entered a not guilty plea to the

charge.

       {¶ 3} The case proceeded to a jury trial on December 5, 2016, with a guilty verdict

on the burglary charge and specification returned on December 8, 2016. Thereafter, on

December 14, 2016, appellant’s counsel filed a motion for a new trial asserting juror

misconduct. On January 24, 2017, the motion was granted.

       {¶ 4} A second trial commenced on February 6, 2017. Testimony was presented

from law enforcement as to the unfolding of the events on July 29, 2016. The first

witness was the 9-1-1 supervisor of call takers and police dispatchers; she was also the

records custodian. She testified about the incident detail report which links all related

calls and dispatches together and is generated in the ordinary course of business. The

supervisor stated that there were four calls received relating to the incident; those were

played for the jury. The calls involved the initial call from a neighbor about unusual

activity at the home and subsequent calls from persons residing in the neighborhood

regarding a suspicious individual.

       {¶ 5} During cross-examination, the supervisor was questioned about the incident

detail report consisting of 35 pages. Specifically, the supervisor was questioned about

the discrepancies in the description of the suspect. At the time of the burglary, the




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officers described the suspect as wearing a black hoodie and gray sweatpants. In the time

between the burglary and appellant’s apprehension, between 3:55 a.m. and 6:07 a.m., the

suspect was described by two police officers as wearing a white tee shirt and then by

civilians as wearing a light long-sleeve grey tee shirt or hoodie. One description included

a black hat.

       {¶ 6} Following the dispatch call of a suspected burglary in progress, Toledo

Police Officer Joseph Petro was the first officer to arrive at the scene on Shelbourne

Avenue; Officer Chris Evans arrived immediately thereafter. Officer Petro went around

to the right of the house while Evens proceeded to the rear of the house. An additional

unit arrived with Officer Danielle Kasprzak joining Petro and Officer Jonathon Chio

assisting Officer Evans.

       {¶ 7} Officer Petro stated that he could see an individual through the window; he

was dismantling a television and had socks on his hands. Petro testified that he then saw

a second suspect walking down the stairs to the living room area. Officer Petro indicated

that there was lighting on in the house. Petro stated that the outside lighting conditions

included moonlight and streetlights at the nearby junction of two streets. Officer Petro

further indicated that he regularly worked the midnight shift and that he was accustomed

to seeing in the dark.

       {¶ 8} Officer Petro testified that appellant abruptly jumped out the side window,

head first; Petro was able to grab around his body. According to Officers Petro and

Kasprzak, appellant was brandishing a weapon. Petro stated that he released appellant in




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order to grab his forearm and gain control of the weapon while pulling him out of the

window.

         {¶ 9} Officer Petro testified that at some point he released appellant, assuming that

he would fall to the ground. Instead, appellant was pulled back into the window; as he

was retracting, appellant pointed the gun in his face. Officer Petro stated that the gun was

approximately 12 inches from his face and that he was able to identify appellant as the

individual wielding the gun. He further described appellant as wearing a black hoodie

and gray sweatpants and stated that his hair was in “twisties” or unkempt and disheveled.

         {¶ 10} While this transpired, Officer Kasprzak began yelling “gun, gun, gun” into

her police radio and had stepped back from the two in order to position herself to shoot

the suspect if necessary. Kasprzak stated that she saw the suspect point the weapon at

Officer Petro. Officer Kasprzak identified appellant as the individual; as did Petro, she

described appellant as wearing gray sweatpants and a dark or black hoodie. Kasprzak

stated that appellant had “twistie” or nappy, separated hair.

         {¶ 11} After the individual was pulled back into the home, he and the other

suspect fled through the front door and the officers gave chase. The other suspect was

quickly apprehended. Appellant was apprehended in the area approximately two hours

later.

         {¶ 12} During the pursuit, officers discovered a loaded magazine that appeared to

have been dropped recently (it was neither dirty nor weathered). No gun was ever

recovered.




4.
       {¶ 13} Toledo Police Detective Terry Cousino, of the scientific investigation unit,

testified that he is called to crime scenes in order to collect and document physical

evidence. Detective Cousino testified that he heard about the incident on Shelbourne

Avenue over the radio and, rather than proceeding to the crime scene, he responded to aid

in the foot pursuit of the suspect. Cousino inspected the magazine recovered and could

not identify any visual fingerprints; Cousino stated that this was very common.

Similarly, Detective Michael Murphy testified that he has inspected hundreds of

magazines and guns and had never retrieved a usable fingerprint.

       {¶ 14} Detective Murphy further testified that an oddly-parked Chevrolet Impala

was observed by officers three houses from the break-in. Officers ran the license plate

and found that it did not belong in the neighborhood. They approached the vehicle and

discovered an intoxicated individual sleeping in the passenger seat. Detective Murphy

testified that their investigation revealed that the woman the vehicle was registered to was

the mother of appellant’s child. Further, photographs taken from the girlfriend’s social

media page (upon which she used appellant’s last name) showed appellant in what looked

like the same vehicle.

       {¶ 15} The victim-homeowner testified that he did not give appellant permission

to be in his home or to take any of his belongings. The victim also described the

electronics in his home and the fact that they had been tampered with.

       {¶ 16} Following deliberations, the jury found appellant guilty of burglary; the

jurors could not reach a unanimous verdict as to the firearm specification. On




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February 14, 2017, appellant was sentenced to seven years of imprisonment. This appeal

followed with appellant raising two assignments of error for our review:

              Assignment of Error No. 1): The failure to request a transcript from

       the previous trial to impeach witnesses, constituted ineffective assistance of

       counsel.

       {¶ 17} Appellant also asserts the following supplemental assignment of error:1

              Assignment of Error No. 2): Appellant’s conviction for burglary, a

       felony of the second degree, was against the sufficiency and manifest

       weight of the evidence.

       {¶ 18} Appellant’s first assignment of error challenges trial counsel’s failure to

obtain a transcript of his first trial to use for impeachment of witnesses at the second trial.

In general, to establish ineffective assistance of counsel, a criminal defendant must prove

two elements: “First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).

Prejudice under Strickland v. Washington requires a showing “that there is a reasonable




1
 Following the withdrawal of appellant’s initial counsel, this court permitted new
counsel to file a supplemental brief.


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probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

       {¶ 19} Further, when considering a claim of ineffective assistance of counsel, a

court must be “highly deferential” to trial counsel and “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

at 689. A properly licensed attorney in Ohio is presumed to execute his duties in an

ethical and competent manner. State v. Hamblin, 37 Ohio St.3d 153, 155-56, 524 N.E.2d

476 (1988).

       {¶ 20} Arguing that appellant’s counsel was ineffective by failing to obtain the

first trial transcript, appellant asserts that there were several inconsistencies in Officer

Danielle Kasprzak’s testimony between the first and second trials that should have been

challenged. In particular, appellant notes that at the first trial Officer Kasprzak indicated

that upon arrival at the burglary in progress she could not see the individuals in the house

because she was blocked by Officer Petro. At the second trial, the officer testified:

              Q: What if anything were you able to see when looking through that

       window?

              A: I saw one of the suspects inside the window that was fiddling

       with a TV or something up against the wall. * * *. And he was kind of over

       that way fiddling with something. He’s really the only person I could see.




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       {¶ 21} Further, during her testimony at the first trial, Officer Kasprzak testified:

               A: As he comes out the window, Officer Petro grabs him. I see a

       gun. * * *. I see the suspect pull the gun up to Joe Petro’s face, and I

       thought he was going to shoot Joe Petro in the face. I take the three steps to

       get in a position to where I could shoot him, and he’s gone.

               ***

               Q: Did you see where he went?

               A: Not -- not really. I mean I knew he didn’t end up – because I

       was expecting him to be rolling out of the window because of how far out

       the window he had gotten by the time I took the steps to get Joe out of my

       way kind of, if that makes sense.

               And by the time I did that and I turned around he was gone, and in

       that moment I realized he got pulled back in the house by what happened,

       what transpired. I didn’t actually see what happened because it was really

       fast.

       {¶ 22} At the second trial, Officer Kasprzak stated that she observed the gun going

higher until it was pointed at Officer Petro’s face. Kasprzak states that the suspect was

being “sucked back into the house.” She stated that she was able to see the suspect’s

face. Officer Kasprzak stressed that the events happened very quickly.

       {¶ 23} Finally, appellant contends that Officer Michael Watson’s testimony

differed between the two trials; specifically, as to whether the officers’ description of




8.
appellant and the varying descriptions by 9-1-1 callers precluded the possibility that the

suspect had successfully altered his appearance and no longer fit the clothing description.

In the second trial, Watson indicated negatively stating that the officers had conclusively

identified the suspect based on their initial encounter with him at the burglary site. When

questioned about prior “hearing” testimony, Watson indicated that he misunderstood the

question at that time.

       {¶ 24} Supporting his argument that counsel was ineffective by failing to impeach

the witnesses with their former trial testimony, appellant relies on a federal habeas corpus

case captioned Nixon v. Newsome, 888 F.2d 112 (11th Cir.1989). In Nixon, the defendant

was convicted of murder. At his trial, the only eyewitness testified that she saw the

defendant shoot and kill her husband. Id. at 114. Previously, at a trial involving another

individual, Zolun, who was also charged in the murder, the same eyewitness testified that

she saw Zolun kill her husband. Id. at 113. The court concluded that in light of the

“glaring and crucial discrepancies” in her testimony, counsel’s failure to confront the

witness on cross-examination “with her statements or by introducing the transcript” was

constitutionally deficient. Id. at 115.

       {¶ 25} In the present case, we first note that appellant was represented by the same

counsel for both trials. As to Officer Kasprzak’s testimony, the only clear discrepancy

was her ability to see individuals in the house. As to the struggle outside the window, at

both trials Officer Kasprzak testified that she observed appellant point a gun at Officer

Petro’s face. Whether she saw the suspect being pulled back into the house does not




9.
affect her testimony that she saw appellant point a gun in Officer Petro’s face. Further, in

the second trial Kasprzak stressed that the events happened very quickly.

       {¶ 26} Reviewing the first and second trial transcripts and the relevant law, we

conclude that any inconsistencies were trivial in nature and did not impact the outcome of

the trial. Thus, appellant’s counsel was not constitutionally ineffective and appellant’s

first assignment of error is not well-taken.

       {¶ 27} In his second assignment of error, appellant argues that his burglary

conviction was not supported by sufficient evidence and was against the weight of the

evidence. Appellant’s argument centers on identification testimony by the officers

involved, and the 9-1-1 calls from area residents and corroborative evidence.

       {¶ 28} Sufficiency of the evidence and manifest weight of the evidence are

quantitatively and qualitatively different legal concepts. State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency of the evidence is purely a question

of law. Id. Under this standard of adequacy, a court must consider whether the evidence

was sufficient to support the conviction, as a matter of law. Id. The proper analysis is

“‘whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.’” State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996),

quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.




10.
       {¶ 29} Appellant was convicted of burglary, R.C. 2911.12(A)(2) and (D) which

provides:

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

       following:

               ***

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

       separately occupied portion of an occupied structure that is a permanent or

       temporary habitation of any person when any person other than an

       accomplice of the offender is present or likely to be present, with purpose

       to commit in the habitation any criminal offense;

               ***

               (D) Whoever violates division (A) of this section is guilty of

       burglary. A violation of division (A)(1) or (2) of this section is a felony of

       the second degree. A violation of division (A)(3) of this section is a felony

       of the third degree.

       {¶ 30} Appellant also argues that the conviction was against the weight of the

evidence. Unlike a sufficiency of the evidence analysis, in determining whether a

conviction is against the weight of the evidence a court of appeals sits as a “thirteenth

juror,” and:

               ‘reviewing the entire record, weighs the evidence and all reasonable

       inferences, considers the credibility of witnesses and determines whether in




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       resolving conflicts in the evidence, the jury clearly lost its way and created

       such a manifest miscarriage of justice that the conviction must be reversed

       and a new trial ordered. The discretionary power to grant a new trial should

       be exercised only in the exceptional case in which the evidence weighs

       heavily against the conviction.’ Thompkins at 387, quoting State v. Martin,

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

       {¶ 31} Appellant’s arguments under the above review standards similarly

challenge the evidence purporting to identify him as the burglar. Appellant challenges

his identification based on the officers’ opportunity to see his face, discrepancies in his

clothing description, and the lack of corroborative evidence.

       {¶ 32} As to the testimony presented regarding facial identification, appellant first

contends that there was no evidence regarding any lighting sources enabling Officer Petro

to observe appellant. The testimony at trial belies this contention. As set forth above,

Petro specifically stated that there was a light on in the house and there were streetlights

and moonlight and that he was accustomed to working in the dark. Officer Kasprzak

similarly testified that “it was lit up pretty well” by a bright streetlight at the T-intersection

of two streets.

       {¶ 33} Appellant also contends that the officers’ facial identification was not

credible because they failed to specifically indicate in the report that they saw the

suspect’s face and that the officers failed to mention his facial tattoo. Appellant further

argues that the testimony presented at trial was that appellant dove out of the window,




12.
face down, with a hoodie covering his head. At trial, Officers Petro and Kasprzak

testified that they clearly saw appellant’s face during the incident and they were cross-

examined about the contents, or lack thereof, of the police report.

       {¶ 34} Appellant further argues that the fact that appellant was described as

wearing a black hoodie and grey sweatpants and that appellant was arrested wearing a

black hoodie and sweatpants was insufficient to support his burglary conviction because

the clothing was “generic.” Appellant bolsters this argument with the fact that the 9-1-1

calls in the intervening period between the burglary and appellant’s arrest offered varying

descriptions of an individual roaming the neighborhood. Two officers also described him

as wearing a white tee shirt. These discrepancies were thoroughly vetted at trial.

       {¶ 35} Finally, appellant argues that the lack of corroborating evidence,

specifically fingerprint evidence, weighs against appellant’s conviction. As set forth

above, suspect one was observed dismantling a television set with socks on his hands;

appellant was apprehended with a sock in his pocket. Further, Detectives Cousino and

Murphy testified that it is rare to find usable fingerprints on either a magazine or a gun.

Finally, appellant’s girlfriend’s vehicle, registered to an address not in the neighborhood

of the burglary, was found three doors down. Further, there was no explanation for why

the vehicle or appellant were in the neighborhood during the events.

       {¶ 36} Reviewing the evidence presented at trial we find that a reasonable juror

could have found appellant guilty of burglary. Further, analyzing appellant’s arguments

under the manifest weight of the evidence standard, we cannot say that the jury clearly




13.
lost its way in finding appellant guilty of burglary. This case centered heavily on the

identification testimony of Officers Petro and Kasprzak; they were clear in identifying

appellant as the perpetrator. Any conflicting testimony went to the weight of the

evidence and we cannot conclude that the jury lost its way in its resolution of such

conflicts.

       {¶ 37} Based on the foregoing, we find that appellant’s burglary conviction was

supported by sufficient evidence and was not against the weight of the evidence.

Appellant’s second assignment of error is not well-taken.

       {¶ 38} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Lucas County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.

                                                                        Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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