[Cite as State v. O'Leary, 2016-Ohio-8095.]


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


STATE OF OHIO,
                                                          CASE NO. 13-16-14
   PLAINTIFF-APPELLEE,

  v.

TERRY L. O'LEARY,                                         OPINION

   DEFENDANT-APPELLANT.


STATE OF OHIO,
                                                          CASE NO. 13-16-15
   PLAINTIFF-APPELLEE,

  v.

TERRY L. O'LEARY,                                         OPINION

   DEFENDANT-APPELLANT.



                 Appeals from Seneca County Common Pleas Court
                   Trial Court Nos. 15 CR 0259 and 15 CR 0010

                                     Judgments Affirmed

                          Date of Decision: December 12, 2016



APPEARANCES:

        Jennifer L. Kahler for Appellant

        Rebeka Beresh for Appellee
Case Nos. 13-16-14 and 13-16-15


WILLAMOWSKI, J.

        {¶1} Defendant-appellant Terry L. O’Leary (“O’Leary”) brings this appeal

from the judgments of the Court of Common Pleas of Seneca County finding him

guilty of receiving stolen property and of violating the terms of his community

control sanctions. O’Leary claims that 1) the conviction was not supported by

sufficient evidence; 2) the conviction is against the manifest weight of the evidence,

and 3) that he was denied the effective assistance of counsel. For the reasons set

forth below, the judgments are affirmed.

        {¶2} This case stems from a claim that on November 14, 2015, O’Leary had

driven a taxi cab that had been reported as stolen. Doc.A 2.1 At the time of the

alleged offense, O’Leary was under community control sanctions. Doc.B 31. A

community control violation was filed on November 25, 2015. Doc.B 38. On

December 9, 2015, the Seneca County Grand Jury indicted O’Leary on one count

of receiving stolen property in violation of R.C. 2913.51(A), (C), a felony of the

fourth degree. Doc.A 2. The matter proceeded to a bench trial, which was held on

April 14, 2016. At the conclusion of the trial, the trial court found O’Leary to be

guilty of the charged offense. 2016 Doc. 31. On May 6, 2016, O’Leary waived his

right to a revocation hearing on the community control violation and admitted to the



1
  As there are two different cases with two different records in this case, the dockets will be identified
separately. The docket for trial court case no. 15-CR-0259, which is the primary case raised on appeal, and
appellate case number 13-16-15 will be identified as “Doc.A” The docket for trial court case no. 15-CR-
0010 and appellate case number 13-16-14 will be identified as “Doc.B”

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Case Nos. 13-16-14 and 13-16-15


violation based upon his conviction in trial court case no. 15-CR-0259. Doc.B 50.

O’Leary was then sentenced to a prison term of nine months with credit for 73 days

for violating the terms of his community control. Id. That same day, a sentencing

hearing was held on the receiving stolen property conviction. Doc.A 33. The trial

court ordered Appellant to serve a prison term of 14 months in prison with credit

for 171 days of time served on this conviction. Id. The sentence was ordered to be

served consecutive to that for the community control violation for a total prison term

of 23 months. Id. O’Leary filed a timely notice of appeal in both cases. Doc.A 37

and Doc.B 54. On appeal O’Leary raises the following assignments of error.

                            First Assignment of Error

       The trial court erred in finding [O’Leary] guilty of receiving
       stolen property where the State failed to introduce sufficient
       evidence to support the conviction.

                           Second Assignment of Error

       The trial court erred in finding [O’Leary] guilty of receiving
       stolen property when the conviction was against the manifest
       weight of the evidence.

                           Third Assignment of Error

       [O’Leary] was not provided effective assistance of counsel when
       [O’Leary’s] attorney failed to request that the trier of fact
       consider unauthorized use of a vehicle.

                           Fourth Assignment of Error

       The trial court erred in finding [O’Leary] violated the terms of
       his community control for the reason he was convicted of
       receiving stolen property.

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Case Nos. 13-16-14 and 13-16-15



                                 Trial Testimony

      {¶3} In order to address the first and second assignments of error, a review

of the evidence presented at trial must occur. The State presented the testimony of

six witnesses. The first witness was Scott McIntyre (“McIntyre”). McIntyre

testified that he had been friends with O’Leary since they were children. Tr. 8. On

November 8, 2015, McIntyre, O’Leary, and Tonya Currier (“Currier”) went out in

Findlay, Ohio. Tr. 8-9. Eventually, McIntyre dropped O’Leary off at the cab station

where O’Leary lived, and McIntyre and Currier went to Fostoria. Tr. 9. In Fostoria,

O’Leary pulled up beside them in a cab. Tr. 10. At the time, McIntyre did not think

it was strange because O’Leary lived above the cab company and worked for it as

well. Tr. 10. When they met up, O’Leary told him that he needed to get the cab

back to the station. Tr. 10. The cab said “Tiffin Cab Service” on the side. Tr. 11.

On cross-examination McIntyre indicated that he had “known William [Omlor] to

give [O’Leary] keys to his own personal vehicles and the cabs”, so seeing O’Leary

driving the cab did not seem odd. Tr. 13.

      {¶4} Karen Bloom (“Bloom”) testified that she worked at the Southside

Drive Thru in Fostoria. Tr. 16-17. On November 14, 2015, she observed a “cab

flying up and down the road and a customer that came through crying.” Tr. 17. The

cab was a yellow Tiffin cab driven by a guy who was screaming and chasing another




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Case Nos. 13-16-14 and 13-16-15


vehicle. Tr. 18. On both direct and cross-examination, Bloom indicated that she

did not know who the driver of the cab was. Tr. 20.

       {¶5} William Omlor (“Omlor”) testified that he owns “Tiffin Service Cab.”

Tr. 21. On the side of each of his cabs is the logo with the name “Tiffin Service

Cab”, a phone number, and the cab number. Tr. 22. Omlor testified that he and

O’Leary had been friends for over 20 years and that he had employed O’Leary as a

“part-time midnight dispatcher, part-time taxi cab washer.” Tr. 23. At no time was

O’Leary employed as a driver. Tr. 23. On November 14, 2015, Omlor received a

phone call from one of his dispatchers about a missing cab. Tr. 24. Omlor instructed

her to notify the police that the cab unit 4-2 had been stolen. Tr. 24. Omlor then

went to Fostoria because of the reports of the driver of the cab being erratic. Tr. 24.

Omlor stopped the cab at the intersection of State Route 587 and Township Road

112 and determined that the cab was being driven by Currier at that time. Tr. 25.

Currier then jumped out of the vehicle and got into another vehicle. Tr. 26. Omlor

testified that he had not given O’Leary permission to use the vehicle that night. Tr.

26. Although Omlor thought of O’Leary as a friend, he testified that he did not give

O’Leary permission to drive the cab on November 14, 2015, and he was not doing

so as part of his job. Tr. 78.

       {¶6} On cross-examination Omlor testified that O’Leary lived at the cab

station and had access to the cabs keys. Tr. 79. Omlor testified that if had known

O’Leary had the cab and there had been no complaints from Fostoria, he would not

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Case Nos. 13-16-14 and 13-16-15


have called the police. Tr. 80. Omlor never believed that O’Leary meant to keep

the cab and he testified that he was not convinced that O’Leary had been the one to

use the cab. Tr. 80. However, if O’Leary were the one using the cab, Omlor would

consider it stolen. Tr. 80. Omlor admitted that in the past, he had given O’Leary

permission to drive his vehicles. Tr. 81. Omlor denied that O’Leary had ever made

“runs” in a cab for Omlor. Tr. 84. Though, Omlor admitted on redirect that he had

allowed O’Leary to drive a cab without a license to pick up parts for the cab

company. Tr. 85.

      {¶7} Patricia Standley (“Standley”) testified that she resided in Fostoria. Tr.

91. On November 14, 2015, she heard an argument outside her house amongst

McIntyre, Currier, and O’Leary. Tr. 92. When they left, Standley saw O’Leary

drive away in a cab from “Tiffin Cab.” Tr. 92. Rebecca Nigh (“Nigh”) testified

that she lived with Standley. Tr. 95. Like Standley, Nigh heard the argument and

saw O’Leary leave driving a cab. Tr. 96.

      {¶8} Detective Lieutenant Mark E. Marquis (“Marquis”) testified that he is

employed by the Tiffin Police Department. Tr. 98. Marquis testified that he

investigated the reported theft of the cab. Tr. 99. Omlor told Marquis that he had

located his cab in Seneca County, had stopped the cab, and that the driver had fled

from the vehicle. Tr. 100. His investigation led to an identification of O’Leary as

being the driver of the cab at some point in time that evening. Tr. 102-103. On

cross-examination, Marquis admitted that he had no direct evidence as to who had

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Case Nos. 13-16-14 and 13-16-15


stolen the vehicle and that is why O’Leary was charged with receiving stolen

property. Tr. 107.

      {¶9} After the State’s final witness, O’Leary’s attorney recalled Omlor to the

stand to testify for him. Tr. 109. Omlor stated that if O’Leary had called him, he

would have let him borrow one of his personal vehicles. Tr. 111. However, Omlor

reiterated that Omlor had not asked to borrow any vehicle and had not been given

permission to use any vehicle on November 14, 2015. Tr. 112.

      {¶10} O’Leary then took the stand in his own defense. O’Leary testified that

he did some pickups or “runs” when working for Omlor though he did not have a

chauffeur’s license. Tr. 116. O’Leary indicated that he would regularly use

Omlor’s vehicle, including using a cab for his personal use. Tr. 116-17. O’Leary

admitted to driving the cab on November 14, 2015. Tr. 117. However, he had no

intention of doing anything other than returning the vehicle to Omlor. Tr. 117.

O’Leary testified that he had keys to the cab used that were given to him by Omlor.

Tr. 118. O’Leary indicated that he believed based upon the past practices and

statements by Omlor that he was allowed to use any of the vehicles, including the

cab, whenever he wanted. Tr. 118-19. Currier came into possession of the cab when

she took it from him and he followed her to try and retrieve it because he was

concerned what she would do with it.          Tr. 119.   According to O’Leary, the

relationship between him and Omlor was such that he had previously borrowed

vehicles without asking permission and that was accepted as normal. Tr. 121-22.

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Case Nos. 13-16-14 and 13-16-15


On cross-examination, O’Leary admitted that he was not working when he took the

cab to Fostoria. Tr. 125-26.

                             Sufficiency of the Evidence

        {¶11} O’Leary claims in the first assignment of error that the judgment of

the trial court was not supported by sufficient evidence. A claim of sufficiency of

the evidence raises a due process question concerning whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, ¶219, 954 N.E.2d 596 (citing State v. Thompkins, 78

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541). “On review of the sufficiency of

the evidence to support a criminal conviction, ‘the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.’” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶34, 840 N.E.2d

1032 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560).

        {¶12} O’Leary was charged with one count of receiving stolen property in

violation of R.C. 2913.51(A), (C). To prove this charge, the State had to present

evidence that O’Leary 1) received, retained, or disposed of the property of another

2) while knowing or having reasonable cause to believe 3) that the property had

been stolen. Omlor testified that he did not give O’Leary permission to use the

vehicle and that he had reported the vehicle as stolen. Multiple people testified that

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Case Nos. 13-16-14 and 13-16-15


they had observed O’Leary driving the vehicle while in Fostoria. O’Leary admitted

to being in possession of the vehicle and that he had not received express permission

to use the vehicle. The testimony presented indicated that the cab was taken without

the permission of the owner, i.e. stolen, that O’Leary knew the vehicle had been

taken without the permission of the owner, and that he was in possession of it while

it was in the Seneca County section of Fostoria. Viewing the evidence in a light

most favorable to the State, the evidence is sufficient to support the charge of

receiving stolen property. The first assignment of error is overruled.

                          Manifest Weight of the Evidence

       {¶13} In the second assignment of error, O’Leary claims that the verdict was

against the manifest weight of the evidence. When reviewing a judgment to

determine if it is against the manifest weight of the evidence, an appellate court

“review[s] the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Mendoza, 137 Ohio App.3d 336, 2000-Ohio-1689, 738 N.E.2d 822 (3d. Dist.). See,

also, State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new

trial should be granted only in the exceptional case in which the evidence weighs

heavily against conviction. Thompkins at 387. Although the appellate court acts as



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Case Nos. 13-16-14 and 13-16-15


a “thirteenth juror,” due deference to the findings made by the fact-finder must still

be given. State v. Moorer, 3d Dist. 13-12-22, 2013-Ohio-650, ¶ 29.

       {¶14} When reviewing this case, there is no question that the primary issue

for the trial court to determine was whether the defendant knew or should have

known the vehicle was stolen.        Much of the finding of guilt rests upon a

determination of credibility. There is no dispute that O’Leary lacked the express

consent to use the vehicle on the night in question. Instead, the question raised is

whether O’Leary had been given implied consent to use the vehicle. If the trial

court believed O’Leary’s testimony that Omlor had given him implied consent to

use the vehicle freely, then it could be reasonably argued that O’Leary did not know

that the use would cause anyone to believe the vehicle was stolen. However, if the

trial court believed that Omlor had not given O’Leary implied consent to use the

vehicle whenever he wished, then O’Leary should have known that the vehicle

would be deemed stolen by the owner. After reviewing the evidence, this court does

not find that the trial court clearly lost its way and that a manifest miscarriage of

justice resulted. Therefore, the judgment is not against the manifest weight of the

evidence. The second assignment of error is overruled.

                         Ineffective Assistance of Counsel

       {¶15} O’Leary’s third assignment of error alleges that he was denied

effective assistance of counsel because his attorney failed to request the trial court

to consider the lesser charge of unauthorized use of a vehicle.

                                        -10-
Case Nos. 13-16-14 and 13-16-15


       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial and
       substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
       71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
       When making that determination, a two-step process is usually
       employed. “First, there must be a determination as to whether
       there has been a substantial violation of any of defense counsel's
       essential duties to his client. Next, and analytically separate from
       the question of whether the defendant's Sixth Amendment rights
       were violated, there must be a determination as to whether the
       defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
       (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
       623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
       3135, 57 L.Ed.2d 1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
       Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The

failure to prove either 1) a substantial violation or 2) prejudice caused by the

violation makes it unnecessary for a court to consider the other prong of the test.”

State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.

       {¶16} Here, O’Leary argues that he was prejudiced by his counsel failing to

request that the trial court also consider the misdemeanor charge of unauthorized

use of a vehicle. The failure to request that a trial court consider a lesser offense is

a matter of trial strategy and does not establish a claim of ineffective assistance of

counsel. State v. Griffie, 74 Ohio St.3d 332, 1996-Ohio-71, 658 N.E.2d 764. See



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Case Nos. 13-16-14 and 13-16-15


also, State v. Lyle, 3d Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 37. For this

reason, the third assignment of error is overruled.

                           Community Control Violation

       {¶17} Finally, O’Leary claims that the trial court erred in finding that he had

violated the terms of his community control due to the conviction for receiving

stolen property. This court has previously addressed the receiving stolen property

conviction in the prior assignments of error. Having found no error, the conviction

is affirmed. The terms of O’Leary’s community control included a provision that

he would obey all state laws. O’Leary failed to abide by that provision and admitted

to such at the hearing. Thus, the trial court did not err in finding that O’Leary had

violated the terms of his community control sanctions. The fourth assignment of

error is overruled.

       {¶18} Having found no error prejudicial to the Appellant in the particulars

assigned and argued, the judgments of the Court of Common Pleas of Seneca

County are affirmed.

                                                                Judgments Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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