[Cite as State v. Helfrich, 2019-Ohio-1785.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Craig R. Baldwin, J.
                          Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 18-CA-45
JAMES C. HELFRICH                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Municipal Court, Case No. 18-CRB-00051



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            May 8, 2019



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

TRICIA MOORE                                       JAMES C. HELFRICH PRO SE
40 West Main Street, 4th Floor                     P.O. Box 921
Newark, OH 43055                                   Pataskala, OH 43062
[Cite as State v. Helfrich, 2019-Ohio-1785.]


Gwin, P.J.

         {¶1} Appellant James S. Helfrich [“Helfrich”] appeals his conviction and sentence

after a jury trial in the Licking County Municipal Court.

                                          Facts and Procedural History

         {¶2} Brandon Kaiser, Jovid Kimple and Douglas Smith rented property from

Helfrich in October 1, 2017. The parties signed a lease and rental agreement. The

property was described as a house with a detached garage. The tenants were given

access to the lower level of the detached garage for their use. The written lease stated

that pets were not permitted without the written consent of Helfrich.

         {¶3} Kaiser's sister, Brittany Johnson, came to stay with him through the holidays

and brought her dog "Kaiser" to the residence. Mr. Kaiser obtained a second dog "Frank"

around this time. It was initially intended that Brittany would take Frank with her when

she returned to her residence; however, she did not and Mr. Kaiser kept Frank.

         {¶4} In December of 2017, Brandon brought the dogs inside the residence to eat

due to it being cold. Helfrich came to the residence, observed the dogs in the home, and

became angry. Brandon explained that they were his sister's dogs and they were there

because of her visiting. Brandon testified that Helfrich advised him that the dogs were to

remain in the garage when they were on the property.

         {¶5} On December 27, 2017, at around 5:19 PM Kaiser filmed Helfrich as he

drove onto the property. The video then shows Helfrich come around the garage, look

inside the side door of the garage. At this point, the two dogs run out of the garage, away

from the camera, and run off to the left. The dogs are never seen again on the video.

Helfrich walks away to the right back to where his truck is parked. A few moments later,
Licking County, Case No. 18-CA-45                                                        3


you see his pick-up truck drive off the property. Mr. Kaiser went outside and called for

the dogs. Kaiser returned to him and Frank did not return. Kaiser called the City of

Pataskala Police Department.      After calling the police, Brandon posted on various

websites in search of his dog including Nextdoor, Facebook, Paw Scouts, and Pet FBI.

       {¶6} Officer Anthony Wisniewski of the Pataskala Police Department testified that

he dispatched to the residence of Brandon Kaiser on December 27, 2017. He observed

and recorded at the scene fresh boot prints walking around the back of the garage with

dog prints walking parallel with those tracks. At the tire marks where the truck was

parked, both the boot prints and the dog prints disappeared. After conducting his

investigation at Brandon's residence, Officer Wisniewski went to Helfrich’s home. There

he observed a truck parked at the residence. He observed that there were no paw prints

around the truck. Officer Wisniewski testified that he spoke with Helfrich who initially

denied being near the garage.

       {¶7} James Kasten testified that he works in New Albany and was

leaving work at approximately 5:30 PM on December 27, 2017. A few minutes later,

he approached the intersection at Smithmill and he noticed a small animal run out from

the left. He observed the dog attempting to run up to vehicles driving in the intersection.

Kasten stopped and opened the door to his vehicle and yelled for the dog, who without

hesitation, jumped right into his vehicle. Kasten observed the dog did not have a collar

or tag. He pulled off the road, found a vet close by, and made the phone call at 5:40

PM. Kasten left the dog with the staff at Willow Tree Vet Hospital. When Kasten

returned home, he posted an ad on Craigslist and Pet FBI. This ad was observed by

Officer Wisniewski, the investigating officer who informed Kaiser. The next day, Brandon
Licking County, Case No. 18-CA-45                                                        4


went to Willow Tree Vet Hospital and found Frank. The veterinary hospital was more than

ten miles away from his residence. Brandon testified that while the dogs were at the

residence he was in charge of their care. At no point did he give the defendant

permission to take the dog.

        {¶8} Once the dog was found, based on the time he was located in New Albany

and the time the dog was last observed at the residence, Officer Wisniewski decided to

drive from the property to the intersection where the dog was located. He observed that

it took him approximately 14 minutes. He also observed that the terrain was farmland

with fences, ravines, and interstate with fences down both sides.

        {¶9} On January 5, 2018, a summons was issued by U.S. Certified Mail to Helfrich

charging him with one count of theft under R.C. 2913.02, a misdemeanor of the first degree

and one count of criminal trespass under R.0 2911.21(A)(2), a misdemeanor of the fourth

degree. Helfrich signed for the summons on January 9, 2018.

        {¶10} Helfrich was arraigned and entered a not guilty plea on January 19, 2018. A

hearing was held in the trial court on February 20, 2018 during which Helfrich informed the

court that he intended to proceed pro se.

        {¶11} The trial proceeded on May 16 and concluded on May 17, 2018.Helfrich

represented himself and testified at trial. The jury found Helfrich guilty of theft and not

guilty of criminal trespass.

        {¶12} On May 25, 2018, the Court sentenced Helfrich for the charge of theft. The

court sentenced him to serve One Hundred Eighty days with One Hundred Twenty days

suspended, fined him $250, imposed a protective order, and placed him on probation for

a period of one year. However, in a subsequent judgment entry on June 12, 2018, the
Licking County, Case No. 18-CA-45                                                       5


court said it was 180 days in jail and 160 days suspended. Helfrich filed a motion to stay

execution of his sentence and asked for clarification of the sentence. On June 12, 2018,

the Court granted Helfrich's motion to stay and denied his motion to clarify as moot.

                                      Assignments of Error

       {¶13} Helfrich raises fourteen assignments of error,

       {¶14} “I. APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.

       {¶15} “II. THE COURT ERRED IN ALLOWING THIRD PARTIES TO TESTIFY

ABOUT THE OWNERSHIP OF THE DOG IN QUESTION AND THE STATE DID NOT

SHOW A LACK OF PERMISSION TO HAVE CONTROL OF THE DOG.

       {¶16} “III. THE STATE VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT TO

REMAIN SILENT WHEN IT ALLOWED THE PROSECUTOR TO POINT OUT THAT

APPELLANT REFUSED TO ANSWER QUESTIONS.

       {¶17} “IV. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CROSS-

EXAMINE THE APPELLANT USING THE APPELLATE COURT OPINION FROM THE

CASE WHERE HE WAS NAMED A VEXATIOUS LITIGATOR.

       {¶18} “V. APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED AS IT WAS

FOUND OUT THAT THE JURORS COULD NOT SEE THE VIDEOS BEING PLAYED

DURING THE TRIAL.

       {¶19} “VI. THE TRIAL COURT ERRED IN NOT REMOVING JURORS WHO

REPEATEDLY FELL ASLEEP AND DISRUPTED THE TRIAL PROCEEDINGS.

       {¶20} “VII. THE TRIAL COURT ERRED IN NOT RECUSING HIMSELF AND/OR

REPLACING A PREJUDICED STAFF MEMBER.
Licking County, Case No. 18-CA-45                                                        6


       {¶21} “VIII. THE TRIAL COURT ERRED IN CENSORING AND EDITING THE

RAW VERDICT FORMS, WHICH PREVENTED APPELLANT FROM INVESTIGATING

ERRORS MADE BY THE COURT AND ITS STAFF.

       {¶22} “IX. THE TRIAL COURT ALLOWED PLAIN ERRORS OR DEFECTS

WHICH SUBSTANTIALLY AFFECTED THE RIGHTS OF THE APPELLANT.

       {¶23} “X. THE TRIAL COURT ERRED BY ALLOWING THE STATE TO PRESENT

VIDEOS AND PICTURES TO THE JURY DURING DELIBERATION THAT WERE NOT

AUTHENTICATED OR ADMITTED INTO EVIDENCE.

       {¶24} “XI. THE CUMULUTIVE [sic.] EFFECT OF ALL OF THE ERRORS AT

TRIAL DEPRIVED JIM HELFRICH OF A FAIR TRIAL AND HAS CRIPLED [sic.] HIM

WITH A CRIME OF DISHONESTY FOR THE REST OF HIS LIFE.

       {¶25} “XII. THE GUILTY VERDICT OF THEFT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

       {¶26} “XIII. THE SENTENCE OF APPELLANT WAS UNREASONABLY HARSH

FOR A FIRST TIME OFFENDER.

       {¶27} “XIV. THE TRIAL COURT ERRED WHEN ALLOCATING COURT COSTS.”

       Pro se Litigants

       {¶28} We understand that Helfrich has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where
Licking County, Case No. 18-CA-45                                                          7

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

        {¶29} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),

the Supreme Court noted, “a reviewing court cannot add matter to the record before it

that was not a part of the trial court's proceedings, and then decide the appeal on the

basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”

It is also a longstanding rule "that the record cannot be enlarged by factual assertions in

the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d

227(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858

N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in his brief that

are outside of the record.

        {¶30} In the interests of justice, we shall attempt to consider Helfrich’s

assignments of error.

                                               I.

        {¶31} In his First Assignment of Error, Helfrich argues that the trial court violated

his right to a speedy trial.

        STANDARD OF APPELLATE REVIEW.

        {¶32} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a

person accused of a crime is a fundamental right made obligatory on the states through
Licking County, Case No. 18-CA-45                                                           8

the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579

(1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational

effort to enforce the constitutional right to a public speedy trial of an accused charged with

the commission of a felony or a misdemeanor and shall be strictly enforced by the courts

of this state.” State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus.

        {¶33} Our review of a trial court’s decision regarding a motion to dismiss based

upon a violation of the speedy trial provisions involves a mixed question of law and fact.

State v. Larkin, 5th Dist. No.2004–CA–103, 2005-Ohio-3122, 2005 WL 1463255, ¶11. As

an appellate court, we must accept as true any facts found by the trial court and supported

by competent, credible evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 17, 2016-

Ohio-5912, 2016 WL 5118653, ¶ 43, citing Larkin, supra. With regard to the legal issues,

however, we apply a de novo standard of review and thus freely review the trial court’s

application of the law to the facts. Id.

        {¶34} When reviewing the legal issues presented in a speedy-trial claim, we must

strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d

53, 57, 661 N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-

Ohio-2326, 2010 WL 2060900, ¶ 12.

        ISSUE FOR APPEAL.

       A. Whether the trial court permissibly extended the trial date beyond the R.C.

2945.71 time prescriptions.

        {¶35} The most serious offense Helfrich was charged with was a misdemeanor of

the first degree. A person charged with a first-degree misdemeanor must be brought to

trial within 90 days unless the right to a speedy trial is waived. R.C. 2945.71(B)(2).
Licking County, Case No. 18-CA-45                                                         9


Helfrich did not waive time. Pursuant to R.C. 2945.73, a person who is not brought to

trial within the proscribed time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be

discharged” and further criminal proceedings based on the same conduct are barred.

       {¶36} A defendant establishes a prima facie case for discharge once he

demonstrates that he has not been brought for trial within the time limits set forth in R.C.

2945.71. State v. Ashbrook, 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, 2007 WL

2582869, ¶ 49, citing State v. Butcher, 27 Ohio St.3d 28, 30–31, 500 N.E.2d 1368 (1986).

When an appellant has established he was tried outside speedy-trial time limits, the

burden shifts to the state to show that the time limit was extended under R.C. 2945.72.

Id. at ¶31. If the state fails to produce evidence in rebuttal under R.C. 2945.72, then

discharge pursuant to R.C. 2945.73(B) is required. Id. “When reviewing a speedy-trial

issue, an appellate court must calculate the number of days chargeable to either party

and determine whether the appellant was properly brought to trial within the time limits

set forth in R.C. 2945.71.” State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, 834

N.E.2d 887, ¶ 19 (12th Dist.).

       {¶37} Certain events toll the accumulation of speedy-trial time. R.C. 2945.72

provides for a tolling of the time limitations under certain circumstances,

              The time within which an accused must be brought to trial, or, in the

       case of felony, to preliminary hearing and trial, may be extended only by

       the following:

              (A) Any period during which the accused is unavailable for hearing

       or trial, by reason of other criminal proceedings against him, within or

       outside the state, by reason of his confinement in another state, or by
Licking County, Case No. 18-CA-45                                                   10


       reason of the pendency of extradition proceedings, provided that the

       prosecution exercises reasonable diligence to secure his availability;

             (B) Any period during which the accused is mentally incompetent to

       stand trial or during which his mental competence to stand trial is being

       determined, or any period during which the accused is physically incapable

       of standing trial;

             (C) Any period of delay necessitated by the accused's lack of

       counsel, provided that such delay is not occasioned by any lack of

       diligence in providing counsel to an indigent accused upon his request as

       required by law;

             (D) Any period of delay occasioned by the neglect or improper act of

       the accused;

             (E) Any period of delay necessitated by reason of a plea in bar or

       abatement, motion, proceeding, or action made or instituted by the

       accused;

             (F) Any period of delay necessitated by a removal or change of

       venue pursuant to law;

             (G) Any period during which trial is stayed pursuant to an express

       statutory requirement or pursuant to an order of another court competent

       to issue such order;

             (H) The period of any continuance granted on the accused's own

       motion, and the period of any reasonable continuance granted other than

       upon the accused's own motion;
Licking County, Case No. 18-CA-45                                                         11


              (I) Any period during which an appeal filed pursuant to section

        2945.67 of the Revised Code is pending.

        {¶38} In the case at bar, Helfrich was served with summons by U.S. Certified Mail

signed for on January 9, 2018. Therefore, the state had ninety days, or until April 9, 2018

to bring Helfrich to trial. However, by Judgment Entry filed February 22, 2018, the trial

court granted the state’s motion to continue due to the unavailability of Officer Wisniewski.

[Docket Number 41]. By entry filed February 26, 2018, a new trial date was scheduled for

April 12, 2018. By Judgment Entry filed April 11, 2018, the trial court granted the state’s

request to continue the trial date due to a change in the attorney prosecuting Helfrich’s

case and to allow the state to file a motion in limine “to address the voluminous pre-trial

filings of the defendant regarding a determination of the admissibility of some of the

defendant’s proposed evidence.” [Docket Number 100]. By entry filed April 17, 2018, the

trial court scheduled trial to commence on May 16, 2018. [Docket Number 109]. Trial

began on May 16, 2018. Thus, the speedy trial time calculation is as follows:

        January 9, 2018 to February 26, 2018             46 days

        February 26, 2018 to April 11, 2018              Tolled

        April 11, 2018 to May 16, 2018                   Tolled

        {¶39} Pursuant to R.C. 2945.72(H), a court may grant a continuance upon its own

initiative as long as it is reasonable. This provision has been interpreted to permit courts

to sua sponte continue an accused’s trial beyond the time limit prescribed by R.C.

2945.71, but only when reasonable and only when the continuances are made by journal

entry prior to the expiration of the time limit. See State v. Lee, 48 Ohio St.2d 208, 357

N.E.2d 1095(1976), and Aurora v. Patrick, 61 Ohio St.2d 107, 15 O.O.3d 150, 399 N.E.2d
Licking County, Case No. 18-CA-45                                                        12


1220(1980). In the case at bar, the trial court found the continuances reasonable and

journalized the continuance prior to the expiration of the time limit.

        {¶40} In the case at bar, only forty-six days of the 90-day speedy trial period had

expired prior to the start of trial.

        {¶41} Helfrich’s First Assignment of Error is overruled.

                                                 II.

        {¶42} In his Second Assignment of Error, Helfrich argues that the state failed to

provide testimony from the owner of the dog, “Frank,” that Helfrich did not have

permission to take the dog. In his Twelfth Assignment of Error, Helfrich maintains that

his conviction for theft is against the manifest weight of the evidence.

        STANDARD OF APPELLATE REVIEW- SUFFICIENCY OF THE EVIDENCE.

        {¶43} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

        {¶44} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
Licking County, Case No. 18-CA-45                                                      13

N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry

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 proven beyond

a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, Oh. Sup.

Ct. No. 2016-1255, 2018-Ohio-22, 2018 WL 328882 (Jan. 4, 2018), ¶19. Thus, “on review

for evidentiary sufficiency we do not second-guess the jury's credibility determinations;

rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of

the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516,

543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis

added); Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds

unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’”

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State

v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148

Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

       ISSUE FOR APPEAL.

      A.   Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, “if believed, would convince the average mind of the

defendant's guilt on each element of the crime of theft beyond a reasonable doubt.”

       {¶45} Helfrich was charged with theft. R.C. 2913.02 states in relevant part,

             (A) No person, with purpose to deprive the owner of property or

       services, shall knowingly obtain or exert control over either the property or

       services in any of the following ways:
Licking County, Case No. 18-CA-45                                                        14


                 (1) Without the consent of the owner or person authorized to give

       consent;

                                              ***

See also, 2T. at 324. “Owner” is defined as,

                 (D) “Owner” means, unless the context requires a different meaning,

       any person, other than the actor, who is the owner of, who has possession

       or control of, or who has any license or interest in property or services,

       even though the ownership, possession, control, license, or interest is

       unlawful.

R.C.2913.01 (D). See also, 2T. at 325-326. “Deprive” is defined as,

                 (C) “Deprive” means to do any of the following:

                 (1) Withhold property of another permanently, or for a period that

       appropriates a substantial portion of its value or use, or with purpose to

       restore it only upon payment of a reward or other consideration;

                 (2) Dispose of property so as to make it unlikely that the owner will

   recover it;

                 (3) Accept, use, or appropriate money, property, or services, with

       purpose not to give proper consideration in return for the money, property,

       or services, and without reasonable justification or excuse for not giving

       proper consideration.

R.C. 2913.01(C). See also, 2T. at 325.

       {¶46} In the case at bar, Helfrich presented the testimony of Shonda Montroy.

Montroy testified that she had found the dog identified as Frank hiding under a car at her
Licking County, Case No. 18-CA-45                                                                            15


residence. (2T. at 56).1             No one contacted her for “a couple of weeks.” (2T. at 57).

Montroy testified that she then received a message from Brandon Kaiser who told her

that he and his family rescue dogs and they would care for the dog. (2T. at 57 - 58).

Brandon and another came to see the dog; however, Brandon returned alone to pick the

dog up from Montroy’s residence. (2T. at 59).

              {¶47} Helfrich also called as a witness Douglas Smith. Smith testified that he and

Kaiser went to see the dog at Montroy’s residence. (2T. at 189). Smith testified that

Kaiser picked up the dog by himself from the residence. (2T. at 189). The following

exchange occurred during direct examination:

                    [Helfrich]:      When - - when you guys obtained the dog, Frank, was

              the intention to give it to the sister if you know, or for Brandon to keep it?

                    [Smith]:         No.    Brandon and I actually had this conversation.

       Leaving the home we discussed, like, whose dog it would be and he decided

       that it would be his dog.

                    [Helfrich]:      What do you mean?

                    [Smith]:         There was no talk - - I mean there was no talk of this

              being his sister’s dog or anything like that. I mean, his sister was never

              involved in us getting Frank. His sister lived in another state, and I mean,

              we got Frank by, like the two of us.

2T. at 189-190. Although Kaiser testified that his plan was to give the dog to his sister,

Kaiser decided to keep Frank. (1T. at 57-58). Kaiser testified that he did not give Helfrich

permission to take Frank. (1T. at 58).


          1   For clarity the references to Helfrich’s jury trial will be identified by volume and page number as
“T.”
Licking County, Case No. 18-CA-45                                                     16


        {¶48} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Helfrich knowingly with purpose to deprive the owner of property

or services, knowingly obtain or exert control over the dog known as Frank without

consent of the owner or person authorized to give consent; and, accordingly, there was

sufficient evidence to support Helfrich’s conviction.

       STANDARD OF APPELLATE REVIEW- MANIFEST WEIGHT OF THE

EVIDENCE.

        {¶49} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

              “[I]n determining whether the judgment below is manifestly against

        the weight of the evidence, every reasonable intendment and every

        reasonable presumption must be made in favor of the judgment and the

        finding of facts.

                                            ***

               “If the evidence is susceptible of more than one construction, the

        reviewing court is bound to give it that interpretation which is consistent

        with the verdict and judgment, most favorable to sustaining the verdict and

        judgment.”
Licking County, Case No. 18-CA-45                                                            17

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

        {¶50} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

        {¶51} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.
Licking County, Case No. 18-CA-45                                                           18


        ISSUE FOR APPEAL.

       B. Whether the jury clearly lost their way and created such a manifest miscarriage

of justice that Helfrich’s conviction for theft must be reversed and a new trial ordered.

        {¶52} In the case at bar, the jury heard the witnesses, viewed the evidence and

heard Helfrich’s testimony, arguments and explanations about his and Kaiser’s actions.

The jury also viewed Kaiser and Helfrich subject to cross-examination. Thus, a rational

basis exists in the record for the jury’s decision.

        {¶53} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n. 4,

684 N.E.2d 668 (1997).
Licking County, Case No. 18-CA-45                                                            19


        {¶54} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Helfrich of theft.

        {¶55} Based upon the foregoing and the entire record in this matter we find

Helfrich’s conviction for theft is not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided that

matter. The jury heard the witnesses, evaluated the evidence, and was convinced of

Helfrich’s guilt of theft.

        {¶56} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime of theft for which Helfrich was convicted.

        {¶57} Helfrich’s Second and Twelfth Assignments of Error are overruled.

                                                   III.

        {¶58} In his Third Assignment of Error, Helfrich contends that the jury was

arguably allowed to base its verdict of guilty on the perceived basis that his failure to

answer questions of Officer Wisniewski and his decision to end his discussion with the

police was substantive evidence of his guilt. [Appellant’s Brief at 16]. Helfrich agrees

that he failed to object at the trial court level. [Appellant’s Brief at 16].

        {¶59} After gathering information from Kaiser, Officer Wisniewski and a second

officer went to Helfrich’s home to continue the investigation. While at the home, the

Officer’s body microphone recorded the conversation with Helfrich. Helfrich speaks with

Officer Wisniewski for a short period. Helfrich then ends the discussion. The recording
Licking County, Case No. 18-CA-45                                                       20


is one of seven videos contained on State’s Exhibit One. The Exhibit was entered into

evidence without objection. 1T. at 231-232.

       {¶60} Officer Wisniewski told Helfrich he was not under arrest. Helfrich points to

the following exchange, in which the state inquired of Officer Wisniewski as follows,

       Q:     Okay. And what was the next question you asked him?

       A:     The next question I asked, because at that point, I mean, I had seen

       him go to the garage. I had seen him let the - - or let the dogs out, you

       know what I mean? So the next thing I asked him was, cause at this point

       it's why would you lie about going in the garage (inaudible). So I said,

       where's the dog? Like, where's the dog?

       Q:     And was it at that point that he ended your conversation?

       A:     Yes.

1T. at 125. [Appellant’s Brief at 15-16]. It is unclear from the audio if Helfrich told

Wisniewski that he wanted to speak to an attorney. At the end of the conversation, Officer

Wisniewski told Helfrich that he was going to be charged with theft and criminal mischief.

He asked if Helfrich wanted the complaint mailed to him.

       {¶61} The right to remain silent is conferred by the United States and the Ohio

Constitutions. The privilege against self-incrimination “is fulfilled only when the accused

is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered

exercise of his own will.’” State v. Graber, 95 N.E.3d 631, 641 (5th Dist.2003) quoting

Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), quoting

Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653(1964). The United States

Supreme Court in Miranda v. Arizona detailed the well-known procedural safeguards,
Licking County, Case No. 18-CA-45                                                        21


including the right to an attorney, to protect the privilege against self-incrimination. “A

suspect’s right to an attorney during questioning * * * is derivative of his right to remain

silent.” State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 13

quoting Wainwright v. Greenfield, 474 U.S. 284, 298-299, 106 S.Ct. 634, 88 L.Ed.2d 623

(1986) (Rehnquist, J., concurring). In Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240,

49 L.Ed.2d 91 (1976), the United States Supreme Court held that use of a defendant’s

post-arrest, post-Miranda silence for impeachment purposes violates the Due Process

Clause of the Fourteenth Amendment. State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-

2147, 807 N.E.2d 335, ¶ 16. In Wainwright v. Greenfield, 474 U.S. 284, 298-299, 106

S.Ct. 634, 88 L.Ed.2d 623 (1986), the United States Supreme Court held the use of a

defendant’s post-arrest, post-Miranda silence as substantive evidence of guilt violated

due process. The State may not use a defendant’s silence to lead the jury to the

conclusion that innocent people speak to the police to clear up misunderstandings, while

guilty people consult with their attorneys. State v. Abraham, 9th Dist. Summit No. 26258,

2012-Ohio-4248, 2012 WL 4100406, ¶ 42 citing State v. Leach at ¶ 32.

       {¶62} In State v. Abraham, 9th Dist. Summit No. 26258, 2012-Ohio-4248, the

Ninth District Court of Appeals affirmed a decision to find no Doyle violation in a scenario

where a defendant’s pre-arrest, pre-Miranda silence was referred to in the state’s case-

in-chief. The detective in Abraham testified that during questioning, the defendant stated

he did not know if he needed to talk to an attorney or he may want to talk to an attorney.

Id. at ¶ 43. The state stopped the line of questioning and no more references were made

regarding the defendant’s attorney.
Licking County, Case No. 18-CA-45                                                        22

        {¶63} The Ninth District found the testimony in Abraham to be distinct from Leach

because the State in Abraham never affirmatively sought to use the defendant’s silence

as evidence. Abraham, ¶45. The detective’s reference was “brief and isolated,” the

reference was vague, and there was no evidence the State sought to elicit the response

the detective gave. Id. citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971

N.E.2d 865, ¶ 162.

        {¶64} In this case, we find Helfrich’s silence was pre-arrest and pre-Miranda. We

further find the statement was vague in that the officer simply stated Helfrich ended the

interview. In Leach, the defendant stated, “He wished to consult an attorney.” Leach, ¶

16. Second, Officer Wisniewski’s statement was brief and isolated. There was no further

reference during the state’s case-in-chief about Helfrich ending the interview.

        {¶65} Further, there is no evidence the state affirmatively sought to use Helfrich’s

silence as substantive evidence of his guilt; nor did the state use the evidence for

impeachment purposes. The Ninth District stated, “[t]he thrust of Leach and its progeny

is that the State may not use a defendant’s unwillingness to talk to the police to infer his

guilt.” Abraham, ¶ 45 citing Powell, ¶¶ 155-156. Officer Wisniewski made no comment

on Helfrich’s decision to end the interview.

        {¶66} In this case, we find no abuse of discretion when the trial court did not find

the state elicited a Doyle violation necessitating a mistrial. A mistrial is required where

the ends of justice so require and a fair trial is no longer possible. Officer Wisniewski’s

reference to Helfrich ending the interview did not rise to that level.

        {¶67} Helfrich’s Third Assignment of Error is overruled.
Licking County, Case No. 18-CA-45                                                           23


                                                  IV.

        {¶68} In his Fourth Assignment of Error, Helfrich argues that the trial court

improperly permitted the state to cross-examine Helfrich with evidence that he had been

found to be a vexatious litigator.

       STANDARD OF APPELLATE REVIEW - ADMISSIBILITY OF EVIDENCE.

        {¶69} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991).    “Ordinarily, we review a trial court’s hearsay rulings for an abuse of

discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However,

we review de novo evidentiary rulings that implicate the Confrontation Clause. United

States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).” State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

        ISSUE FOR APPEAL

       A. Whether the trial court abused its discretion by admitting evidence of Helfrich’s

being named a “vexatious litigator.”

        {¶70} During cross-examination, and over the objections of the Helfrich, the state

attempted to question Helfrich as having been found to be a vexatious litigator. 2T. at

258-262. The state cross-examined Helfrich with a 2012 Opinion of this Court affirming

the trial court’s decision finding him to be a vexatious litigator in an unrelated civil case.

Helfrich v. Madison, 5th Dist. Licking No. 11 CA 26, 2012-Ohio-551. Initially, the Judge

sustained the objection however, he then allowed the prosecutor to question him:
Licking County, Case No. 18-CA-45                                                           24


             Q.       Thank you. Now you're no stranger to the courtroom are you,

      Mr. Helfrich?

             A.       I'm a stranger to his type of thing but no stranger the

   courtroom, correct.

             Q.       Right. And in fact you have engaged in litigation quite often,

       wouldn't you agree with that?

             A.       Your Honor, objection to relevance of any line of questioning

       of this. It's really - - it's not relevant to whether I stole a dog or trespassed.

             THE COURT.             Well I'm going to reserve the ruling on your

       objection, just like I gave you some leeway to find out where things were

       going, I'm going to give her a little bit of leeway and if it's improper, I'll

       sustain your objection and instruct the jury to disregard it but let's see

       where it goes.

             A.       Okay.

             THE COURT.             Mrs. Moore, you may continue.

             Q.       In fact, your creditability was called into question during

       litigation by the Court of Appeals, correct?

             A.       Objection, Your Honor.

             THE COURT.             I'll sustain the objection. Move on. Jury will

       disregard the last question.

             Q.       Isn't it true that you have been found to engage in retaliatory

       tactics against people that you get upset with?

             A.       Your Honor, I object.
Licking County, Case No. 18-CA-45                                                      25


             THE COURT.            Overrule it. It goes toward credibility.

             A.     I can't recall. There was a - there was a case, I believe it was

       in front of Judge Marcelain, that he found that I had improperly filed a

       complaint and I don't remember who it was about, but yeah, there was

       some - - some out of, I don't know, I bet you don't have that good of track

       record. That was something –

             Q.     Excuse me, Your Honor. I'd ask for (inaudible) to strike this -

             A.     Okay. There was some - - yes, there was - -

             THE COURT.            The jury will disregard the witness's comment

       about Mrs. Moore's alleged track record.

             A.     So yeah there was, I think there was a judge that said

       something about it. I filed a lawsuit improperly. That's all I remember about

       it.

             Q.     In fact, you were deemed a vexatious litigator by the Court of

       Appeals based on your filings. Isn't that correct?

             A.     No that's not correct?

             Q.     No? So if I have a case in front of me, James Helfrich v.

       Timothy Madden, where the court deems you to be a vexatious litigator

       engaging in retaliatory tactics - -

             A.     Okay.

             Q.     And intimidation of defendants, that that is not true?

             A.     Your Honor, can I raise my objection again? This had no

       relevance to what I'm here for today. I didn't file - -
Licking County, Case No. 18-CA-45                                                         26


             THE COURT.              It goes toward creditability, bias, and motive to

       lie. The objection will be overruled.

             A.        Yes. There was a - - there was a case on vexatious litigation.

             Q.        Yes. And you were deemed to be one, correct?

             A.        Yes.

             Q.        Vexatious litigator and you were found to retaliate against

       present defendants for their defense of the Strickland cases and to

       discourage their continued defense of the Strickland Common Pleas by

       intimidation?

             A.        Well there wasn't — yes there was.

             Q.        Okay. And, in fact, that case remains in place, the finding that

       you're a vexatious litigator and you have to file a special way different from

       everybody else, isn't that correct?

             A.        That's correct. That's correct.

             Q.        To make sure that your claims are valid?

             Q.        So it's not just something out of Marcelain's courtroom. This

       was kind of a big deal, would you agree?

             A.        Well (inaudible) had them thrown out a couple times before

       he got it through, but yeah, go ahead.

             Q.        But it remains in place, correct?

             A.        Well you get tired after awhile. Yeah, sure.

             Q.        Huh.

             A.        There's a chance you might win this too but -
Licking County, Case No. 18-CA-45                                                          27


             Q.     Objection, Your Honor.

             THE COURT.            Sustained. Jury will disregard.

             Q.     And why I bring that up is that kind of goes to your behavior in

       this case, correct?

             A.     How does it go to my behavior in this case?

             Q.     Well let's talk about that.

2 T. at 258-262. The prosecutor then claimed Appellant, by proceeding and obtaining an

eviction through the Court was retaliating against his tenants. 2T. at 262-266.

       {¶71} The state repeated that Helfrich had been designated a vexatious litigator

as a part of her closing arguments, claiming that he had been named a vexatious litigator

due to retaliatory conduct and intimidation of witnesses and that showed his character in

the present case:

             As I stated in opening, you're going to hear a lot of evidence about

       things that happened before, about things that happened after, and I

       brought up the vexatious litigator information for a reason, because of the

       way things happened in this case is consistent with things that Mr. Helfrich

       has done in the past, use of retaliation, use of intimidation. This is no

       different. This fits in with his pattern of conduct that only after he's reported

       for being on the property without permission, about going into the garage,

       about opening that door, does he file a report for criminal trespass from

       five days before. He then sends them an email saying, you know, because

       of your actions, because of the things that have happened on this day, I

       filed charges and the only communication we're going to have is through
Licking County, Case No. 18-CA-45                                                                     28


         writing now, retaliatory. The next day after this happens, even though I

         believe there's a load of evidence that he knew about the dogs before that

         he knew about the sister being on the property, it wasn't until after they

         filed charges that he evicted them from the property. That's why I brought

         up that information about vexatious litigator, cause it's a common mode of

         operation for Mr. Helfrich, use of retaliatory tactics, and intimidation.

2T. at 296-297.

         {¶72} The state argues that this evidence was admissible pursuant to Evid.R.

404(A) (1) as a pertinent trait of character offered to rebut Helfrich’s testimony concerning

his good character2. [State’s brief at 18-19].

         {¶73} R.C. 2323.52 defines a “vexatious litigator” as,

                (3) “Vexatious litigator” means any person who has habitually,

         persistently, and without reasonable grounds engaged in vexatious

         conduct in a civil action or actions, whether in the court of claims or in a

         court of appeals, court of common pleas, municipal court, or county court,

         whether the person or another person instituted the civil action or actions,

         and whether the vexatious conduct was against the same party or against

         different parties in the civil action or actions. “Vexatious litigator” does not

         include a person who is authorized to practice law in the courts of this state

         under the Ohio Supreme Court Rules for the Government of the Bar of

         Ohio unless that person is representing or has represented self pro se in



2 The state makes no argument in the brief filed in this Court that the evidence was admissible for
impeachment purposes.
Licking County, Case No. 18-CA-45                                                            29


         the civil action or actions. For the purposes of division (A)(3) of this section,

         “civil action” includes a proceeding under section 2743.75 of the Revised

         Code.

         {¶74} “Vexatious conduct” is defined as follows,

               (2) “Vexatious conduct” means conduct of a party in a civil action that

         satisfies any of the following:

               (a) The conduct obviously serves merely to harass or maliciously

         injure another party to the civil action.

               (b) The conduct is not warranted under existing law and cannot be

         supported by a good faith argument for an extension, modification, or

         reversal of existing law.

               (c) The conduct is imposed solely for delay.

R.C. 2323.52(A)(2).

         {¶75} "A hallmark of the American criminal justice system is the principle that

proof that the accused committed a crime other than the one for which he is on trial is not

admissible when its sole purpose is to show the accused's propensity or inclination to

commit crime.” State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975).

         {¶76} The state does not cite anywhere in our Opinion in the previous case that

we found Helfrich engaged in retaliatory actions or intimidation of witnesses. Our Opinion

notes,

               In the case at bar, after hearing days of testimony on the vexatious

         litigator counterclaim, the trial court found by “clear and convincing

         evidence that Mr. Helfrich has ‘habitually, persistently, and without
Licking County, Case No. 18-CA-45                                                       30


       reasonable grounds engaged in vexatious conduct’ in multiple civil

       actions.” See Judgment Entry, March 4, 2011, at page 19. In reaching this

       conclusion, the trial court thoroughly reviewed Appellant’s history of filing

       complaints, motions, and affidavits for disqualification in that Court, in

       addition to Appellant’s conduct in connection with said cases. The trial

       court found that Appellant’s “conduct ‘obviously serves merely to harass or

       maliciously injure another party’ and/or ‘is not warranted under existing law

       and cannot be supported by a good faith argument for an extension,

       modification, or reversal of existing law; and/or the described conduct was

       “imposed solely for delay’.” Id. at 18–19, 882 N.E.2d 61.

             Based on our review of the record and Appellant’s numerous lawsuit

      and copious filings, we conclude that the trial court did not err in finding in

      favor of Appellees on their vexatious litigator counterclaim. Upon review of

      the record, we find overwhelming evidence that Appellant habitually files

      unnecessary, inappropriate, or supernumerary pleadings and motions.

      Further, the record shows that Appellant insists on raising and re-raising

      arguments which have been rejected by the trial court, and this Court,

      sometimes repeatedly.

             While this Court is sympathetic to a party who feels he has suffered

       an injustice, and takes all measures within the law to correct such, we find

       that Appellant’s actions have long passed this stage. His conduct in the

       various matters before the Licking County Common Pleas Court are

       “vexatious,” within the meaning of the statute, in that “[t]he conduct is not
Licking County, Case No. 18-CA-45                                                          31


        warranted under existing law and cannot be supported by a good faith

        argument for an extension, modification, or reversal of existing law.” R.C.

        § 2323.52(A)(2)(b). His conduct is also “vexatious” insofar as some of it

        “is imposed solely for delay.” As such, the trial court properly declared him

        a vexatious litigator.

Helfrich v. Madison, 5th Dist. Licking No. 11 CA 26, 2012-Ohio-551, ¶61-¶63.

        {¶77} Helfrich was not found to be a vexatious litigator because he used retaliation

and intimidation against individuals with whom he disagreed. Therefore, the evidence did

not have any tendency to show motive, opportunity, intent, preparation, plan, knowledge,

or absence of mistake. Evid.R. 404(B). Nor can the evidence be said to have any

tendency to show bias, prejudice, interest, or any motive to misrepresent. Evid.R. 616(A).

        {¶78} We find the state’s questioning and use of the vexatious litigator evidence

to have been improper insofar as Helfrich was not found to be a vexatious litigator

because he used retaliation and intimidation against individuals with whom he disagreed.

The state further improperly used this evidence to argue that Helfrich’s actions in this

case were in conformity with his past actions in contravention of Evid.R. 404(B).

        {¶79} Despite finding that the trial court erroneously admitted the other-acts

evidence in the case at bar, we must determine if the error was harmless. Pursuant to

Crim.R. 52(A), “any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.” See also State v. McKnight, 107 Ohio St.3d 101, 2005–

Ohio–6046, 837 N.E.2d 315, ¶88 (applying non-constitutional harmless-error analysis to

erroneous admission of other acts evidence). To find an error harmless, an appellate
Licking County, Case No. 18-CA-45                                                        32


court must be able to declare a belief that the error was harmless beyond a reasonable

doubt. State v. Lytle, 48 Ohio St.2d 391, 403, 358 N.E.2d 623 (1976).

       {¶80} In State v. Rahman, the Ohio Supreme Court recognized,

             We are also mindful that our role upon review of this case is not to

       sit as the supreme trier of fact, but rather to assess the impact of this

       erroneously admitted testimony on the jury. In writing about the court’s

       function on federal appellate review, Justice John Paul Stevens’

       observation is particularly appropriate:

             “‘[I]t is not the appellate court’s function to determine guilt or

       innocence * * *. Nor is it to speculate upon probable reconviction and

       decide according to how the speculation comes out * * *. [T]he question

       is, not were [the jury] right in their judgment, regardless of the error or its

       effect upon the verdict. It is rather what effect the error had or reasonably

       may be taken to have had upon the jury’s decision. The crucial thing is the

       impact of the thing done wrong on the minds of other men, not on one’s

       own, in the total setting.’” United States v. Hasting (1983), 461 U.S. 499,

       516, 103 S.Ct. 1974, 1984, 76 L.Ed.2d 96, Stevens, J. concurring (quoting

       Kotteakos v. United States [1946], 328 U.S. 750, 763-764, 66 S.Ct. 1239,

       1247-1248, 90 L.Ed. 1557).

State v. Rahman, 23 Ohio St.3d 146, n. 4, 492 N.E.2d 401. This standard of review has

been applied by the Ohio Supreme Court,

             Thus, under Section 2945.83 of the Revised Code it would seem that

       since there is substantial evidence to support the guilty verdict even after
Licking County, Case No. 18-CA-45                                                       33

       the tainted evidence is cast aside, we should affirm. However, under Fahy

       v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963),

       and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d

       705 (decided February 20, 1967), we are refused that course of action. In

       Fahy, the court said that when constitutionally inadmissible evidence has

       been admitted, a reversal is required where ‘there is a reasonable

       possibility that the evidence complained of might have contributed to the

       conviction.’ (Emphasis added.) In Chapman, the court made it clear that

       the Fahy rule applied to federal constitutional errors in spite of a state

       harmless-error statute to the contrary.

State v. Cowans, 10 Ohio St.2d 97,104-105, 227 N.E.2d 201(1967).

       {¶81} In the case at bar, we find beyond a reasonable doubt, that evidence of

Helfrich’s vexatious litigator status did not contribute to his conviction. As noted in our

disposition of Helfrich’s Second and Twelfth Assignments of Error sufficient evidence was

presented to support each element of the crime of theft. The jury was able to personally

observe Helfrich, Kaiser and Officer Wisniewski subject to cross-examination. The jury

was able to view real-time videos of the events.

       {¶82} Based upon the entire record before us, we conclude that any error in the

admission of the vexatious litigator evidence was harmless beyond a reasonable doubt.

       {¶83} Helfrich’s Fourth Assignment of Error is overruled.

                                                 V.

       {¶84} In his Fifth Assignment of Error, Helfrich contends that the jury could not

view the video evidence that was presented during the trial.
Licking County, Case No. 18-CA-45                                                            34


       {¶85} In the case at bar, during deliberations the jury asked the trial court to allow

the jury to see the video evidence again. 2T. at 335. The jurors were brought back into

the courtroom. The juror viewed the video taken by Kaiser of Helfrich near the garage

area two times. 2T. at 337-340. The trial court then had the bailiff take the video and a

laptop computer to the jury room to allow the jurors to watch the video in the jury room.

2T. at 340. When asked if he had any objection to how the court handled the situation,

Helfrich responded, “No, sir.” 2T. at 341.

       {¶86} Under the doctrine of “invited error,” it is well settled that “a party will not be

permitted to take advantage of an error which he himself invited or induced the trial court

to make.” State ex rel. Smith v. O'Connor, 71 Ohio St. 3d 660, 663, 646 N.E. 2d

1115(1995), citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d

950(1994). See, also, Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145(1943), paragraph

one of the syllabus. As the Supreme Court of Ohio has stated:

             “The law imposes upon every litigant the duty of vigilance in the trial

       of a case, and even where the trial court commits an error to his prejudice,

       he is required then and there to challenge the attention of the court to that

       error, by excepting thereto, and upon failure of the court to correct the same

       to cause his exceptions to be noted. It follows, therefore, that, for much

       graver reasons, a litigant cannot be permitted, either intentionally or

       unintentionally, to induce or mislead a court into the commission of an error

       and then procure a reversal of the judgment for an error for which he was

       actively responsible.”
Licking County, Case No. 18-CA-45                                                            35

Lester at 92-93, 50 N.E.2d 145, quoting State v. Kollar, 142 Ohio St. 89, 91, 49 N.E.2d

952(1915).

        {¶87} Having failed to object when given the opportunity, Helfrich has waived all

but plain error in the jurors viewing of the video evidence.

        {¶88} The Ohio Supreme Court has recently clarified the standard of review for

plain error:

               Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

        errors or defects affecting substantial rights” notwithstanding an accused's

        failure to meet his obligation to bring those errors to the attention of the trial

        court. However, the accused bears the burden to demonstrate plain error

        on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,

        19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

        rule” that constitutes “an ‘obvious’ defect in the trial proceedings,” State v.

        Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

               Even if the error is obvious, it must have affected substantial rights,

        and “[w]e have interpreted this aspect of the rule to mean that the trial

        court's error must have affected the outcome of the trial.” Id. We recently

        clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

        N.E.3d 860, that the accused is “required to demonstrate a reasonable

        probability that the error resulted in prejudice – the same deferential

        standard for reviewing ineffective assistance of counsel claims.”

        (Emphasis sic.) Id. At ¶ 22, citing United States v. Dominguez Benitez,

        542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
Licking County, Case No. 18-CA-45                                                       36


              If the accused shows that the trial court committed plain error

       affecting the outcome of the proceeding, an appellate court is not required

       to correct it; we have “admonish[ed] courts to notice plain error ‘with the

       utmost caution, under exceptional circumstances and only to prevent a

       manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 94

       Ohio St.3d 21, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91,

       372 N.E.2d 804 (1978), paragraph three of the syllabus.

State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, reconsideration

denied, 151 Ohio St.3d 1445, 2017-Ohio-8730, 87 N.E.3d 215.

       {¶89} In the case at bar, we find no plain error because the jury was able to watch

the video in the courtroom and in the jury room. As stated previously, “plain error” exists

only when it is clear the verdict would have been otherwise but for the error. State v.

Knauff, 4th Dist. Adams No. 10CA900, 2011-Ohio-2725, ¶ 44, appeal not allowed, 129

Ohio St.3d 1507, 2011-Ohio-5358, 955 N.E.2d 388.             Moreover, Helfrich has not

demonstrated a reasonable probability the alleged error affected the outcome of the trial.

State v. Garrison, 5th Dist. Muskingum No. CT2017-0034, 2018-Ohio-1048, ¶ 18.

       {¶90} Helfrich’s Fifth Assignment of Error is overruled.

                                                VI.

       {¶91} In his Sixth Assignment of Error, Helfrich claims that the court violated his

due process rights by allowing a juror to remain on the panel who admittedly was sleepy

for a period and a juror who had a coughing fit during closing arguments.

       {¶92} On the second day of trial, the trial court noticed that Juror No. 3 was

appearing to nod off. 2T. at 143. The trial court questioned Juror No. 3 and inquired if
Licking County, Case No. 18-CA-45                                                                37


she felt she could continue or she felt that she would like to be replaced. 2T. at 145. The

juror promised to tell the judge if she felt she could no longer pay attention to the

testimony. 2T. at 145. Later in the day, it was brought to the judge’s attention that Juror

No. 7 was starting to nod off. 2T. at 206-207. The trial judge told counsel that he would

keep an eye on all the jurors to insure no one was sleeping. 2T. at 207. The trial court

interrupted Helfrich’s closing argument to allow a juror to take a break in order to control

her coughing.

         STANDARD OF APPELLATE REVIEW.

         {¶93} It is well settled that the trial court is in the best position to discern the nature

of alleged juror misconduct and to fashion the proper remedy for any demonstrated

misconduct. State v. McKnight, 107 Ohio St.3d 101, 2005–Ohio–6046, ¶184. Further,

the trial court has “‘considerable discretion in deciding how to handle a sleeping juror.’”

Id., quoting State v. Sanders, 92 Ohio St.3d 245, 253 (2001). We will not disturb a trial

court’s handling of a sleeping juror absent an abuse of that discretion. See State v.

Suarez, 11th Dist. Geauga No. 2013–G–3167, 2014–Ohio–1350, ¶ 31.

         ISSUES FOR APPEAL

         A. Whether the trial court abused its discretion by not removing Juror No. 3 or Juror

No. 7.

         {¶94} Where the misconduct involves a juror falling asleep during the trial, a

showing of prejudice typically requires some indication on the record that the juror missed

a large or critical portion of the testimony. See State v. McKnight, 107 Ohio St.3d 101,

837 N.E.2d 315, 2005-Ohio-6046, at ¶ 186-187; State v. Sanders, 92 Ohio St.3d 245,

253, 750 N.E.2d 90(2001). “A trial court ‘has considerable discretion in deciding how to
Licking County, Case No. 18-CA-45                                                          38

handle a sleeping juror.’” Sanders, supra at 253, 750 N.E.2d 90, quoting United States

v. Freitag, 230 F.3d 1019, 1023 (7th Cir. 2000).

       {¶95} It is apparent from the trial judge’s comments that the juror did not fall asleep

repeatedly or for an extended period, but only nodded off at one point during the trial.

Thus, the juror did not miss any large portion of the trial, and without some indication as

to when during the trial the juror fell asleep, it is unclear whether any portions that the

juror might have missed were critical portions. See Sanders, supra at 253, 750 N.E.2d

90; McKnight, supra at ¶ 186-7, 837 N.E.2d 315.

       {¶96} In Sanders, an attorney noted during an on-the-record sidebar that one

juror’s eyes were closed for an hour and fifteen minutes and the juror was motionless for

a half hour. Sanders, supra at 252, 750 N.E.2d 90. There were also indications that one

juror-although it is not clear whether it was the same juror or a different one-had fallen

asleep during another portion of the testimony. Id. at 253, 750 N.E.2d 90. Nevertheless,

the Ohio Supreme Court found no plain error in the absence of some indication as to what

portions of the testimony the juror missed. Id.

       {¶97} In the case at bar, only two isolated instances occurred. It does not appear

from the record that any sleeping juror missed “large or critical portions” of the

proceedings. Therefore, no prejudice results from that jurors remaining on the jury.

Sanders at 253, 750 N.E.2d 90. “Moreover, the trial judge was watching the situation,

and he admonished the jury to be alert. Compare United States v. McFerren (Apr. 8,

1998), C.A.6 No. 96–5458, unpublished opinion, 1998 WL 180514 (affirming conviction

where judge “kept a watchful eye on the jury” and, when necessary, admonished jurors

to stay awake).” Sanders at 253, 750 N.E.2d 90.
Licking County, Case No. 18-CA-45                                                               39


       {¶98} Helfrich’s Sixth Assignment of Error is overruled.

                                                       VII.

       {¶99} In his Seventh Assignment of Error, Helfrich argues the trial court erred by

not recusing himself. Helfrich cites to evidence outside the trial court record to argue that

he and the trial court’s bailiff had heated and contentious relations.

       {¶100} Pursuant to R.C. 2701.03, if a judge of a court of common pleas allegedly

is biased in a proceeding pending before the court, the proper proceeding for a party to

follow to raise this issue is by filing an affidavit of disqualification with the Clerk of the Ohio

Supreme Court. Appellant failed to follow this procedure in the instant case.

       {¶101} Since only the Chief Justice or his designee may hear disqualification

matters, the trial court was without authority to pass upon disqualification, and we are

likewise without authority to void the judgment of the trial court upon that basis. See,

Beer v. Griffith, 54 Ohio St.2d 440, 377 N.E.2d 775(1978).

       {¶102} Helfrich’s Seventh Assignment of Error s overruled.

                                                       VIII.

       {¶103} In his Eighth Assignment of Error, Helfrich contends the trial court erred in

denying his public records request for unredacted jury forms. The trial court only redacted

the names of the jurors from the verdict forms before providing them to Helfrich.

       {¶104} Sup.R. 45 was enacted on July 1, 2009, to specifically govern public access

to court records. “Court records are presumed open to public access.” Sup.R. 45(A).

Sup.R. 45 states in pertinent part:

                (E) Restricting public access to a case document
Licking County, Case No. 18-CA-45                                                        40


              (1) Any party to a judicial action or proceeding or other person who

       is the subject of information in a case document may, by written motion to

       the court, request that the court restrict public access to the information or,

       if necessary, the entire document. Additionally, the court may restrict

       public access to the information in the case document or, if necessary, the

       entire document upon its own order. The court shall give notice of the

       motion or order to all parties in the case.

                                                ***

              (2) A court shall restrict public access to information in a case

       document or, if necessary, the entire document, if it finds by clear and

       convincing evidence that the presumption of allowing public access is

       outweighed by a higher interest after considering each of the following:

                    (a) Whether public policy is served by restricting public

       access;

                    (b) Whether any state, federal, or common law exempts the

       document or information from public access;

                    (c) Whether factors that support restriction of public access

       exist, including risk of injury to persons, individual privacy rights and

       interests, proprietary business information, public safety, and fairness of

       the adjudicatory process.

                                                ***

      {¶105} Sup.R. 47 also provides that a person aggrieved by the decision of a court

to restrict access to court records under Sup.R. 45(E) may challenge the decision by
Licking County, Case No. 18-CA-45                                                          41

pursuing an original action in mandamus. Sup.R. 47(B). See, also, State ex rel Brady,

3d Dist. No. 8–08–10, 2008–Ohio–5958, ¶ 6, reversed in part on other grounds, 123 Ohio

St.3d 255, 915 N.E.2d 1183, 2009–Ohio–4942. (Mandamus is the appropriate remedy

to compel compliance with Ohio’s Public Records Act.). Accord, N.L. v. A.M., 6th Dist.

Lucas No. L-10-1307, 2010-Ohio-5834, ¶ 8.

         {¶106} Thus, while Helfrich may wish to challenge the trial court’s decision to

restrict access to court records, he cannot do so on direct appeal to this court. Instead,

Helfrich must file an original action in mandamus challenging the trial court’s restriction of

access to court records. Sup.R. 47(B).

         {¶107} Helfrich’s Eighth Assignment of Error is overruled.

                                                     IX.

         {¶108} In his Ninth Assignment of Error Helfrich claims, “There is not one shred of

evidence that Appellant ever stole a dog, only a trial that is saturated with plain error that

the court should have stopped. The prosecutor capitalized on as if it were a card game

and not a person's life and reputation, (see all assignments of errors).” Appellant’s Brief

at 28.

         {¶109} We have previously found in our disposition of Helfrich’s Second and

Twelfth Assignments of Error that his conviction is based upon proof beyond a reasonable

doubt of all the elements of theft and is not against the manifest weight of the evidence.

         {¶110} “If an argument exists that can support [an] assignment of error, it is not

this court's duty to root it out.” Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-

Ohio-3299, at ¶14, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-

4368, at ¶31.     “It is not the function of this court to construct a foundation for [an
Licking County, Case No. 18-CA-45                                                           42


appellant's] claims; failure to comply with the rules governing practice in the appellate

courts is a tactic which is ordinarily fatal.” Catanzarite v. Boswell, 9th Dist. Summit No.

24184, 2009-Ohio-1211, at ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682

N.E.2d 1006(9th Dist. 1996). Therefore, “[w]e may disregard any assignment of error that

fails to present any citations to case law or statutes in support of its assertions.” Frye v.

Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4, 2008-Ohio-2194, at ¶12. See, also, App.R.

16(A)(7); App.R. 12(A)(2); Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-

Ohio-3709, at ¶16; Tally v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-Ohio-

1831, at ¶21-22; Jarvis v. Stone, 9th Dist. Summit No. 23904, 2008-Ohio-3313, at ¶23;

State v. Paulsen, 4th Dist. Hocking Nos. 09CA15, 09CA16, 2010-Ohio-806, ¶6; State v.

Norman, 5th Dist. Guernsey No. 2010-CA-22, 2011-Ohio-596, ¶29; State v. Untied, 5th

Dist. Muskingum No. CT20060005, 2007 WL 1122731, ¶141.

       {¶111} According to App. R. 12(A) (2), "The court may disregard an assignment of

error presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in the

brief, as required under App. R. 16(A).” An appellate court may rely upon App.R. 12(A)

in overruling or disregarding an assignment of error because of "the lack of briefing" on

the assignment of error. Hawley v. Ritley, 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-

393(1988); Abon, Ltd. v. Transcontinental Ins. Co., 5th Dist. Richland No. 2004-CA-0029,

2005 WL 1414486, ¶100; State v. Miller, 5th Dist. Ashland No. 04-COA-003, 2004-Ohio-

4636, ¶41. "Errors not treated in the brief will be regarded as having been abandoned by

the party who gave them birth.” Uncapher v. Baltimore & Ohio Rd. Co., 127 Ohio St. 351,

356, 188 N.E. 553, 555(1933).
Licking County, Case No. 18-CA-45                                                             43


       {¶112} In the case at bar, Helfrich has wholly failed to provide any explanation

concerning the legal reasons in support of his Ninth Assignment of Error. Helfrich has

cited no authority in support of his claim. Helfrich has provided no argument in support

of his Ninth Assignment of Error.

       {¶113} Helfrich’s Ninth Assignment of Error is overruled.

                                                 X.

       {¶114} In his Tenth Assignment of Error, Helfrich argues the court erred in allowing

the jury to review State’s Exhibit one. Helfrich admits he did not object to the admission

of State’s Exhibit 1 during trial; however, he contends that the DVD contains pictures and

videos that were not authenticated or admitted into evidence.

       STANDARD OF REVIEW.

       {¶115} “[A]n appellate court may, in its discretion, correct an error not raised at trial

only where the appellant demonstrates that (1) there is an error; (2) the error is clear or

obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s

substantial rights, which in the ordinary case means it affected the outcome of the district

court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 130 S.Ct.

2159, 2164,176 L.Ed.2d 1012 (2010). (Internal quotation marks and citations omitted).

       {¶116} Thus, the defendant bears the burden of demonstrating that a plain error

affected his substantial rights and, in addition that the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings. United States v. Olano (1993), 507

U.S. at 725,734, 113 S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 118, 120 802

N.E.2d 643, 646. Even if the defendant satisfies this burden, an appellate court has
Licking County, Case No. 18-CA-45                                                          44

discretion to disregard the error. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d

1240; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the

syllabus; Perry, supra, at 118, 802 N.E.2d at 646.

       ISSUE FOR APPEAL.

       A. Whether the admission of State’s Exhibit 1 affected Helfrich’s substantial rights

and seriously affected the fairness, integrity or public reputation of his trial.

       {¶117} State’s Exhibit one contains seven videos and several photographs. Officer

Wisniewski took the first video. The video depicts animal and tire tracks found near the

garage area on the day in question. The pictures are taken from this video. Officer

Wisniewski testified and authenticated these during trial. 1T. at 118.

       {¶118} The second and third videos on State’s Exhibit 1 are identical. They were

taken by Kaiser and depict Helfrich at the door of the garage, the dogs coming out from

the garage and Helfrich leaving the property.          Kaiser testified to this at trial and

authenticated the videos.

       {¶119} The fourth video was taken by Kaiser and depicts Helfrich driving up and

parking at the property. Kaiser testified to this at trial and authenticated the video.

       {¶120} The fifth video depicts Officer Wisniewski and Kaiser discussing what had

occurred at the residence. Initially, the state indicated that it was not planning to use that

video. 1T. at 11. The state did not use the video during its case in chief. Helfrich used

and referred to this encounter during his cross-examination of Officer Wisniewski and

Kaiser. He further referred to statements made during the encounter during his own

testimony and Officer Wisniewski’s testimony.
Licking County, Case No. 18-CA-45                                                        45


       {¶121} The sixth video depicts the interview of Helfrich by Officer Wisniewski. The

state did not use this video during its case-in-chief. Helfrich referred to statements made

during this interview in his cross-examination of Officer Wisniewski and during his own

testimony.

       {¶122} The seventh video depicts a telephone call between Helfrich and Officer

Wisniewski in which Helfrich claims he received a threat from someone that if he did not

return the dog, the premises would be damaged. This video was not authenticated,

referred to in the testimony or admitted into evidence.

       {¶123} In the case at bar, six of the videos were authenticated and referred to

during trial. The photographs were likewise properly admitted into evidence. Helfrich

invited any error in the admission of the videos by referring to them during his cross-

examination and his own testimony. We find any error in admitting the seventh video was

harmless beyond a reasonable doubt because it does not incriminate Helfrich with respect

to the charges for which he was on trial. There is no evidence to demonstrate that the

jury viewed this video.

       {¶124} Under these circumstances, there is nothing in the record to show that the

trial court abused its discretion or otherwise committed plain error in allowing the jury to

view State’s Exhibit one during deliberations.

       {¶125} Helfrich’s Tenth Assignment of Error is overruled.

                                                  XI.

       {¶126} In his Eleventh Assignment of Error, Helfrich contends that he was denied

a fair trial due to cumulative errors by the trial court.
Licking County, Case No. 18-CA-45                                                                      46

        {¶127} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150,

¶197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105

Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶103.

        {¶128} Here, Helfrich cites the doctrine of cumulative error, lists or incorporates the

previous assignments of error, and gives no analysis or explanation as to why or how the

errors have had a prejudicial cumulative effect. Thus, this assignment of error has no

substance under Bethel and Sapp.

        {¶129} Further, where we have found that the trial court did not err, cumulative error

is simply inapplicable. State v. Carter, 5th Dist. Stark No.2002CA00125, 2003–Ohio-

1313 at ¶37. To the extent that we have found that any claimed error of the trial court

was harmless, or that claimed error did not rise to the level of plain error, we conclude

that the cumulative effect of such claimed errors is also harmless because taken together,

they did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 89–90,

2004–Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.

        {¶130} As this case does not involve multiple instances of error, Helfrich’s Eleventh

Assignment of Error is overruled.

                                                       XIII.

        {¶131} In his Thirteenth Assignment of Error, Helfrich argues sentencing him to a

minimum of sixty days in jail is unreasonably harsh3.


        3 The trial court’s sentencing entry provides that Helfrich will serve 180 days with 120 suspended.

The entry filed June 12, 2018 states that Helfrich was “sentenced to serve 180 days…The sentencing entry
provides that 160 days be suspended….” The June12, 2018 Judgment Entry is incorrect concerning the
number of jail days suspended in the trial court’s original sentencing entry.
Licking County, Case No. 18-CA-45                                                           47


       STANDARD OF APPELLATE REVIEW.

       {¶132} Misdemeanor sentences are reviewed for an abuse of discretion. State v.

Thadur, 5th Dist. Ashland No. 15 COA 018, 2016–Ohio–417, appeal not allowed, 145

Ohio St.3d 1473, 2016–Ohio–3028, 49 N.E.3d 1314.              In order to find an abuse of

discretion, the reviewing court must determine that the trial court’s decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       ISSUE FOR APPEAL.

       Whether the trial court properly imposed a jail sentence in Helfrich’s case.

       {¶133} When sentencing for a misdemeanor offense, a trial court is guided by the

“overriding purposes of misdemeanor sentencing,” which are to protect the public from

future crime by the offender and others and to punish the offender. R.C. 2929.21(A);

State v. Belt, 5th Dist. Muskingum No. CT2016–0012, 2016–Ohio–8069. “To achieve

those purposes, the sentencing court [must] consider the impact of the offense upon the

victim and the need for changing the offender’s behavior, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or the victim and the public.” Id.

The sentence imposed must be “reasonably calculated to achieve the two overriding

purposes of misdemeanor sentencing * * * commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim, and consistent with

sentences imposed for similar offenses committed by similar offenders.”                   R.C.

2929.21(B).

       {¶134} With regard to the “overriding purposes” of misdemeanor sentencing, the

record before us demonstrates the sentence was designed to punish appellant and, since
Licking County, Case No. 18-CA-45                                                       48


appellant had been sanctioned multiple times before, the sentence was necessary to

protect the public from future crime. State v. Ecenbarger, 5th Dist. Stark No. 2016 CA

00133, 2017–Ohio–165.

       {¶135} R.C. 2929.22 governs sentencing on misdemeanors and states that, in

determining the appropriate sentence for a misdemeanor, the court shall consider all of

the following factors:

              (a) The nature and circumstances of the offense or offenses;

              (b) Whether the circumstances regarding the offender and the

       offense or offenses indicate that the offender has a history of persistent

       criminal activity and that the offender’s character and condition reveal a

       substantial risk that the offender will commit another offense;

              (c) Whether the circumstances regarding the offender and the

       offense indicate that the offender’s history, character, and condition reveal

       a substantial risk that the offender will be a danger to others and that the

       offender’s conduct has been characterized by a pattern of repetitive,

       compulsive, or aggressive behavior with heedless indifference to the

       consequences;

              (d) Whether the victim’s youth, age, disability, or other factor made

       the victim particularly vulnerable to the offense or made the impact of the

       offense more serious;

              (e) Whether the offender is likely to commit future crimes, in general,

       in addition to the circumstances described in divisions (B)(1)(b) and (c) of

       this section;
Licking County, Case No. 18-CA-45                                                         49


             (f) Whether the offender has an emotional, mental, or physical

      condition that is traceable to the offender’s service in the armed forces of

      the United States and that was a contributing factor in the offender’s

      commission of the offense or offenses;

             (g) The offender’s military service record.

      {¶136} R.C. 2929.22(C) states,

             Before imposing a jail term as a sentence for a misdemeanor, a court

      shall consider the appropriateness of imposing a community control

      sanction or a combination of community control sanctions under sections

      2929.25, 2929.26, 2929.27, and 2929.28 of the Revised Code. A court may

      impose the longest jail term authorized under section 2929.24 of the

      Revised Code only upon offenders who commit the worst forms of the

      offense or upon offenders whose conduct and response to prior sanctions

      for prior offenses demonstrate that the imposition of the longest jail term is

      necessary to deter the offender from committing a future crime.

      {¶137} R.C. 2929.22(B)(2) provides that, when determining the appropriate

sentence for a misdemeanor, in addition to considering the factors listed above, “the court

may consider any other factors that are relevant to achieving the purposes and principles

of sentencing set forth in section 2929.21 of the Revised Code.”

      {¶138} There is no requirement that a trial court specifically state its reasons on the

record in sentencing on misdemeanor offenses. State v. Belt, 5th Dist. Muskingum No.

CT2016–0012, 2016–Ohio–8069; State v. Harpster, 5th Dist. Ashland No. 04COA061,

2005–Ohio–1046.     Even where a record is silent, we must presume the trial court
Licking County, Case No. 18-CA-45                                                          50

considered the proper factors enumerated in R.C. 2929.22. State v. Belt, 5th Dist.

Muskingum No. CT2016–0012, 2016–Ohio–8069; State v. Kandel, 5th Dist. Ashland No.

04COA011, 2004–Ohio–6987.

       {¶139} In the case at bar, it is evident from the record the trial court was

unimpressed with the testimony of Helfrich. At sentencing, it is evident the trial court took

issue with his lack of remorse. In the instant case, the trial court indicated that the

sentence was premised upon Helfrich’s lack of remorse, his failure to accept responsibility

for his actions, and the fact that he abandoned the dog a distance from home, near a

busy roadway in sub-zero temperatures.

       {¶140} We find the trial court properly considered the factors of R.C. 2929.22 and

did not abuse its discretion in imposing a jail term of 60 days and suspending the balance.

       {¶141} Helfrich’s Thirteenth Assignment of Error is overruled.

                                                XIV.

       {¶142} In his Fourteenth Assignment of Error, Helfrich contends the trial court erred

in assessing all the court costs to him even though he was found not guilty of the criminal

trespass charge. Helfrich further argues the state continued the trial twice. Each time,

sixteen people were subpoenaed. Helfrich contends that he should not be assessed

those costs and he should only be responsible for half the costs.

       {¶143} R.C. 2947.23(A)(1)(a) governs the imposition of court costs. It states, in

relevant part: “In all criminal cases, * * * the judge * * * shall include in the sentence the

costs of prosecution, * * * and render a judgment against the defendant for such costs.”

The Supreme Court of Ohio has held that R.C. 2947.23 requires a court to assess costs

against all convicted defendants, including indigent defendants. State v. White, 103 Ohio
Licking County, Case No. 18-CA-45                                                          51

St.3d 580, 2004-Ohio-5989, ¶ 8; State v. Hayes, 11th Dist. Ashtabula No. 2004-A-0024,

2005-Ohio-2881, ¶ 8.

       {¶144} We find no abuse of discretion in the case at bar.

       {¶145} In addition, we note the General Assembly amended R.C. 2947.23 by

adding the following provision, “[t]he court retains jurisdiction to waive, suspend, or modify

the payment of the costs of prosecution * * * at the time of sentencing or at any time

thereafter.” In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028,

the Ohio Supreme Court noted that in light of this new provision, a case does not need to

be remanded to the trial court in order for the defendant to obtain an order waiving,

suspending, or modifying costs. Id. at ¶ 264 –265.

       {¶146} Accordingly, in the case at bar, any further dispute as to costs can be

handled in the manner authorized under R.C. 2947.23, without remand by this court.
Licking County, Case No. 18-CA-45                                                   52


      {¶147} Helfrich’s Fourteenth Assignment of Error is overruled.

      {¶148} For all the forgoing reasons, Helfrich’s Fourteen Assignments of Error are

overruled and the judgment of the Licking County Municipal Court is affirmed.



By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
