[Cite as State v. Stults, 2019-Ohio-657.]




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


State of Ohio                                    Court of Appeals Nos. L-18-1036

        Appellee                                 Trial Court Nos. CR0201703012

v.

Ricky Kenneth Stults                             DECISION AND JUDGMENT

        Appellant                                Decided: February 22, 2019


                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} Appellant, Ricky Stults, appeals the April 9, 2018 judgment of the Lucas

County Court of Common Pleas, where he was convicted of burglary in violation of R.C.

2911.12(A)(1) and (D), a felony of the second degree. Finding no error, we affirm.
                                    Assignments of Error

                I. The court abused its discretion by denying appellant’s motion for

         acquittal pursuant to Crim.R. 29 when there was no positive identification

         of appellant in the court room.

                II. Appellant’s conviction for burglary, a felony of the second

         degree, was against the sufficiency and manifest weight of the evidence.

                III. Appellant received ineffective assistance of counsel because

         defense counsel did not file a motion in limine objecting to the introduction

         of evidence which was intended to implicate defendant in a prior criminal

         matter.

                                           Background

         {¶ 2} On August 12, 2017, appellant was alleged to have entered into the business

establishment NINE in Toledo, Ohio, without authorization. The restaurant building

(“building”) was closed to the public, and various employees were present. Appellant

was allegedly captured on video by security cameras consuming and taking various

items.

         {¶ 3} On November 17, 2017, appellant was indicted for burglary in violation of

R.C. 2911.12(A)(1) and (D), a felony of the second degree. Appellant pled not guilty and

the matter proceeded to trial.

         {¶ 4} At trial, a NINE staff member, a patrol officer, and a detective testified.

Photographic evidence from the scene of the crime was presented and submitted in the



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record and, on February 14, 2018, the jury found appellant guilty of burglary. The matter

was set for sentencing on February 23, 2018.

       {¶ 5} At sentencing, the trial court determined that, because appellant had been

previously found guilty and convicted of burglary, R.C. 2929.13(F)(6) applied. As a

result, the trial court sentenced appellant to a mandatory prison term of eight years.

       {¶ 6} The sentencing entry was journalized on February 26, 2018. This journal

entry incorrectly reflected that appellant was convicted under R.C. 2911.12(A)(2) and

(D). A nunc pro tunc entry reflecting the proper code section was journalized April 9,

2018. Appellant now appeals.

                           Assignment of Error Nos. I and II

       {¶ 7} In his first and second assigned errors, appellant asserts there was neither

sufficient nor competent, credible evidence for the court to have proceeded to the jury,

for the jury to have found him guilty, or for the court to have convicted him. Appellee

asserts there was sufficient and competent, credible evidence to support the verdict and

conviction.

       {¶ 8} Crim.R. 29 motions for acquittal are reviewed under the same standard as a

sufficiency of the evidence claim. State v. Hollstein, 6th Dist. Lucas No. L-08-1184,

2009-Ohio-4771, ¶ 28. Whether there is sufficient evidence to support a conviction is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In

reviewing a challenge to the sufficiency of evidence, “[t]he relevant inquiry is whether,

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



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

doubt.” (Internal quotations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d

668 (1997). Appellate courts will not weigh evidence or assess credibility of the

witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978).

       {¶ 9} In reviewing the manifest weight of the evidence, the court is to determine

whether the greater amount of credible evidence supports the conviction. See Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, citing Thompkins

at 387. This court, as if the “thirteenth juror” must review the record, weigh the evidence

and all reasonable inferences drawn from it, consider the witnesses’ credibility and

decide, in resolving any conflicts in the evidence, whether the trier-of-fact “clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” See State v. Steed, 6th Dist. Wood No. WD-15-069,

2016-Ohio-8088, ¶ 51, citing State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio 6048,

943 N.E.2d 1092 (6th Dist.).

       {¶ 10} In this case, appellant specifically challenges the sufficiency and manifest

weight of the evidence because he argues appellee failed to provide an open court,

positive identification of him as the perpetrator shown in the surveillance video and

photos submitted in the record. Appellant asserts no other evidence, including

fingerprints or DNA test results, linked him to the crime. Appellant argues that

appellee’s entire case depended on the developed description of the perpetrator from the

camera footage, and that at trial no one properly identified him as the individual in the



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footage. Appellant notes that it is axiomatic that a conviction requires an identification of

the accused.

       {¶ 11} Appellee counters, specifically arguing that Ohio law imposes no

requirement that a criminal defendant be visually identified in court. Appellee asserts

that the photographic evidence is a silent witness which speaks for itself and is

substantive evidence of what it portrays independent of a sponsoring witness. Appellee

further notes that Detective William White testified about appellant’s appearance,

clothing, personal belongings, and demeanor, and testified that he was sure appellant was

the perpetrator seen in the video.

       {¶ 12} White’s identification was based on appellant having matching clothing,

backpack, and flashlight. Appellee, lastly, concludes that the jury was left to determine

what weight to give the photographic evidence and identification because the evidence

was admitted without objection.

       {¶ 13} R.C. 2911.12(A)(1) provides that “[n]o person, by force, stealth, or

deception, shall * * *[t]respass in an occupied structure * * *, when another person other

than an accomplice of the offender is present, with purpose to commit in the structure * *

* any criminal offense[.]” See State v. McCreary, 6th Dist. Lucas No. L-15-1206, 2016-

Ohio-4753, ¶ 11. Division (D) of that section follows with, “[w]hoever violates division

(A) of this section is guilty of burglary, and a “violation of division (A)(1) or (2) of this

section is a felony of the second degree.” An “occupied structure” is any building when




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“any person is present or likely to be present in it.” See R.C. 2911.12(D); R.C.

2909.01(C)(4).

       {¶ 14} Here, we find surveillance recordings and photographs submitted in the

record show the perpetrator entering and roaming the building, and helping himself to

items while there. Testimony from the operation manager for NINE, Joshua Porter,

revealed that the perpetrator was not welcomed as he entered an unlocked door of the

building and while employees were present, all in an effort to commit numerous thefts.

We are satisfied the perpetrator committed a burglary as defined in R.C. 2911.12(A)(1).

The question then becomes was there sufficient and competent, credible evidence to

support that the perpetrator was indeed appellant.

       {¶ 15} Detective White testified he was 100 percent sure that the individual in the

photographs and recordings was appellant. Our review of the record reveals White based

his identification on a past interview and investigation of another crime appellant

allegedly committed. White testified appellant had the same clothing, backpack,

flashlight, and demeanor as the perpetrator, and we find no issue with the identification.

See R.C. 2945.55 (“When identification of the defendant is an issue, a witness who has

on previous occasion identified such person may testify to such previous identification.”).

       {¶ 16} The jury agreed with White and determined the circumstantial evidence

was sufficient to find appellant was indeed the perpetrator.

       {¶ 17} With respect to the sufficiency of the evidence in the record, we note that

“[c]ircumstantial evidence of a crime has the same probative value as direct evidence and



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is sufficient to prove the elements of a criminal case.” McCreary, 6th Dist. Lucas No. L-

15-1206, 2016-Ohio-4753, at ¶ 20, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus. We find the circumstantial evidence in the

record sufficient, because viewing it in a light favorable to the prosecution leads us to

determine that any rational trier-of-fact could have found the essential elements of

burglary proven beyond a reasonable doubt. See R.C. 2911.12(A)(1), supra.

         {¶ 18} With respect to our analysis of the manifest weight of the evidence, it is

understood that “[w]hen considering circumstantial or direct evidence, ‘a jury is asked to

weigh the chances that the evidence correctly points to guilt against the possibility of

inaccuracy or ambiguous inference.’” Id., quoting Holland v. United States, 348 U.S.

121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Moreover, this court “must give due

deference to the findings made by the jury.” Id., citing Thompkins, 78 Ohio St.3d at 387,

678 N.E.2d 541. Consequently, we cannot say that the circumstantial evidence weighs

heavily against convicting appellant, and there is nothing in the record to find the jury

lost its way or that a manifest miscarriage of justice resulted in the jury’s finding of guilt.

         {¶ 19} Accordingly, appellant’s first and second assignments of error are not well-

taken.

                                Assignment of Error No. III

         {¶ 20} In appellant’s third assigned error, he asserts he had no effective assistance

of counsel because appellee failed to provide notice of its plan to use 404(B) evidence,

and that his counsel did not file a motion in limine to preclude admission of such



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evidence. Appellee contends the 404(B) evidence was offered to show identity of the

perpetrator and that, because appellant had access to appellee’s open file during

discovery, any error related to its failure to notify of such use of the 404(B) evidence was

cured.

         {¶ 21} In evaluating ineffective assistance of counsel claims, the test is “whether

the accused, under all the circumstances, * * * had a fair trial and substantial justice was

done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the

syllabus; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80

L.Ed. 2d 674, 693 (1984). A court must determine “whether there has been a substantial

violation of any of defense counsel’s essential duties to his client” and “whether the

defense was prejudiced by counsel’s ineffectiveness.” State v. Calhoun, 86 Ohio St.3d

279, 289, 714 N.E.2d 905 (1999).

         {¶ 22} In this case, appellant specifically argues that he did not receive effective

assistance because counsel “made no attempt to suppress the testimony about [his]

identification being linked to a suspect in a different case who was wearing substantially

the same clothing, and which Detective William White in the case used as the basis for

his identification.” Appellant notes how White testified that he had interviewed appellant

a day or two before viewing the surveillance video, and that appellant was wearing

similar clothing to those worn by the suspect in the video. Appellant argues counsel’s

failure to object to this testimony resulted in prejudice because, “without the testimony




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about similar clothing, and without a positive identification in the court room, there was

no evidence introduced that appellant was the suspect in the case.”

       {¶ 23} Appellee responds, specifically asserting that the video spoke for itself and

that counsel did not commit error in failing to challenge the 404(B) evidence because

such challenge would have been futile. Appellee notes that it provided appellant with

open-file discovery, which it argues, provided “reasonable notice in advance of trial” of

its intent to use the 404(B) evidence. Appellee otherwise concedes it used 404(B)

evidence, and that it did not provide formal notice of its intent to introduce that evidence.

              (B) Other crimes, wrongs or acts. Evidence of other crimes,

       wrongs, or acts is not admissible to prove the character of a person in order

       to show action in conformity therewith. It may, however, be admissible for

       other purposes, such as proof of motive, opportunity, intent, preparation,

       plan, knowledge, identity, or absence of mistake or accident. In criminal

       cases, the proponent of evidence to be offered under this rule shall provide

       reasonable notice in advance of trial, or during trial if the court excuses

       pretrial notice on good cause shown, of the general nature of any such

       evidence it intends to introduce at trial. (Emphasis added.)

Compare State v. Nuzum, 6th Dist. Lucas No. L-15-1122, 2016-Ohio-2744, with State v.

Kelley, 2017-Ohio-4475, 83 N.E.3d 990 (6th Dist.).

       {¶ 24} We first note that we are not persuaded by appellee’s contention that open-

file discovery cures any failure to provide notice in compliance with Evid.R. 404(B). As



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articulated in dicta of State v. Plevyak, 11th Dist. Trumbull No. 2013-T-0051, 2014-

Ohio-2889, “[t]here is a difference between a defendant knowing the state possesses

‘other acts’ evidence and a defendant knowing the state intends to use it at trial.” Plevyak

at ¶ 18. Moreover, “[a] defendant’s decision to go forward at trial may well depend on

what evidence the state intends to introduce[,] and “[i]f providing discovery alone were

sufficient to satisfy the notice requirements of Evid.R. 404(B)[,] the rule would be

superfluous.” Id.

       {¶ 25} Nevertheless, even accepting that appellee here failed to provide proper

notice of its intent to use 404(B) evidence, and that appellant’s counsel failed to meet an

essential duty to his client by not objecting to such use, appellant has to show he was

prejudiced. To do so, appellant must prove “that there exists a reasonable probability

that, were it not for counsel’s errors, the result of the trial would have been different.”

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the

syllabus.

       {¶ 26} Here, appellant argues that appellee’s evidence which referenced the

perpetrator’s possible prior criminal involvement in an unrelated matter constituted

prejudicial error. He specifically points to testimony of Detective White, arguing that it

provided the jury with impermissible inferences. At trial, the testimony was elicited and

set forth in the record, as follows:

              [Appellee]: Okay. So Officer Eilerts said he completed a general

       offense report?



10.
             [White]: Correct.

             [Appellee]: And passed it on to you, did you review that report?

             [White]: I did.

             [Appellee]: Okay. And had as a detective, I’m sorry, Officer Eilerts

      said it had a name in it; is that correct?

             [White]: It did.

             [Appellee]: That was for Ricky Stults?

             [White]: Correct.

             [Appellee]: And it had a description of his clothing?

             [White]: Yes.

             [Appellee]: And a description of him?

             [White]: Yes.

             [Appellee]: And you said you had encountered the defendant a

      couple days prior; is that correct?

             [White]: The day prior.

             [Appellee]: The day prior, okay. And you had a chance to either

      interview him or watch him being interviewed; is that correct?

             [White]: Correct.

             [Appellee]: Okay. And during that interview was there anything

      about his appearance that seemed relevant to the case that we had before the

      jury today?



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              [White]: Yes.

              [Appellee]: And what was the relevance and what did you see?

              [White]: During the interview I was assisting another detective,

       actually training him, on a theft case from a store where he was

       apprehended. And during that interview I recall that he was wearing a very

       similar, if not identical, clothing that was described in the general offense

       report as well as the fact that he appeared to be the same person in the

       video, in that video that I watched when I finally did get it, and in that

       video he was wearing a mustache at that time.

              [Appellee]: Okay. So summarize what you’re saying there a little

       bit. You saw him the day prior, the defendant?

              [White]: Correct.

              [Appellee]: And he was wearing clothing that seemed to match the

       clothing that he was wearing in the burglary in your case?

              [White]: Correct.

       {¶ 27} In addition to this testimony, White further elaborated on appellant’s

appearance based on his past investigatory interview.

       {¶ 28} Appellant argues that absent impermissible inferences relating to criminal

propensities and linking past criminality derived from this testimony, his trial outcome

would have been different. Appellant hence concludes that the failure to object or




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attempt to suppress the evidence was prejudicial. He directs this court to State v.

Breedlove, 26 Ohio St.2d 178, 271 N.E.2d 238 (1971), to support his position.

          {¶ 29} The Breedlove court found that “under the circumstances” in that case, it

was “unjustifiable for the state, on direct examination, to present police mug shots,

bearing police identification numbers, from which a reasonable inference can be drawn

that the defendant, at some indefinite time in the past had had trouble with the law.” Id.

at 184.

          {¶ 30} In Breedlove, the prosecution, “in an effort [to] bolster the in-court

identification by the state’s witnesses of Breedlove as the perpetrator[,]” presented

“evidence of an out-of-court selection by the witnesses of appellant’s photograph from a

group of mug shots[.]” Id. at 181. Mr. Breedlove argued the trial court allowing the

testimony and pictures into evidence resulted in reversible error. Id. The Breedlove court

agreed. Id. at 184.

          {¶ 31} The Breedlove court began its analysis by referencing R.C. 2945.55, infra,

there recognizing that “[u]nder proper circumstances, an out-of-court identification is

admissible when defendant’s identity is an issue.” Id. at 181. The court stated that the

“first question” was “whether, under R.C. 2945.55, testimony concerning an out-of-court

identification of the accused from a selection of photographs is admissible in evidence.”

Id. The follow-up question was: “if such identification is admissible, may mug shot from

police files, with police numbers thereon, be so used and later admitted in evidence?” Id.

at 182.



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       {¶ 32} In answering these questions, the Breedlove court held that it was

unjustifiable for the state to present the evidence. Id. at 184. The court stated that

“[e]vidence of prior criminal involvement must satisfy the requirements of R. C.

2945.59,” which the court found the photographs submitted in the record did not. Id.

       {¶ 33} Appellee counters by pointing to State v. Grega, 11th Dist. Ashtabula No.

2012-A-0036, 2013-Ohio-4094, where the trial court’s ruling that an officer’s

identification of the defendant despite reference to the defendant’s prior criminality was

not reversible error. The Grega court, after recognizing the exceptions stated in 404(B),

explained that “[u]nder the ‘identity’ exception in the foregoing rule, testimony regarding

a police officer’s prior encounter with the defendant is admissible for purposes of

showing why the officer was able to recognize him.” Id. at ¶ 41, citing State v. Tuff, 11th

Dist. Lake Nos. 2010-L-082 and 2010-L-083, 2011-Ohio-6846, ¶ 46.

       {¶ 34} Appellant urges us to apply the rationale and holding of Breedlove, and

appellee urges us to apply the rationale and holding of Grega.

       {¶ 35} Initially, we agree the photographic evidence and testimony submitted in

the record in this case were admissible under the “identity” exception recognized in

Evid.R. 404(B). We note Evid.R. 404 was not enacted in 1971, when Breedlove was

released.

       {¶ 36} Further, we find that appellee failed to notify appellant of its intended use

of the 404(B) evidence, but that there exists no reasonable probability that the result of

the trial would have been different.



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       {¶ 37} We look to two of our recent cases to reach this determination.

       {¶ 38} First, in State v. Kelley, 2017-Ohio-4475, 83 N.E.3d 990 (6th Dist.), we

reversed the trial court’s holding and determined that in those unique circumstances the

prosecution’s introduction, without notice, of evidence of acts germane to the offense

charged, which occurred outside the period set forth in the indictment, constituted plain

error. Id. at ¶ 1.

       {¶ 39} In an effort to prove Kelley took part in fraudulently applying and

maintaining Medicaid benefits, the state introduced evidence of other allegedly

fraudulent acts of his. These other acts were wholly unrelated to the charges in the case

and were actually from a time period outside of the dates of the indictment. Kelley

argued in relevant part that “admission of the evidence was prejudicial and would have

‘confused the jury as to [his] guilt on the conduct charged.’” See id. at ¶ 43. The state

countered, arguing that the other acts evidence was admissible under Evid.R. 404(B) and

R.C. 2945.59. The state further argued that notice of its intent to use the 404(B) evidence

was not required because R.C. 2945.59 did not explicitly say the requirement.

       {¶ 40} We disagreed and found that notice of intent to use 404(B) evidence was

indeed required despite R.C. 2945.59 not explicitly stating it. Id. at ¶ 46. We found that

“the state ran afoul of the notice requirement in Evid.R. 404(B)[.]” Under the plain-error

standard, we determined that “the failure to provide pretrial disclosure of the above other

acts evidence substantially impaired [Kelley]’s rights to due process of law.” Id. at ¶ 49.




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Hence we found that “the error [of not providing notice] affected the accused’s

substantial rights.”

       {¶ 41} The stated policy and rationale behind our decision in Kelley was

summarized as “[n]ot only does the notice requirement found in Evid.R. 404(B) facilitate

litigation of the magnitude of the offense charged, it provides the person against whom

such evidence may be admitted with a fair opportunity to prepare to meet the impact of

evidence of uncharged offenses.” However, we note this overarching policy and

rationale does not apply in all instances the state fails to notify of its intent to use 404(B)

evidence.

       {¶ 42} For example we point to State v. Nuzum, 6th Dist. Lucas No. L-15-1122,

2016-Ohio-2744, where we held that despite the state’s failure to provide notice of its

intent to use 404(B) evidence, “such error was harmless in light of our conclusion that the

state’s alleged introduction of other acts evidence did not affect the outcome of the trial

or otherwise prejudice appellant.” Id. at ¶ 21.

       {¶ 43} We found that, despite the 404(B) evidence or lack of notice thereof, the

outcome of the case would not have been different because there was otherwise sufficient

and competent, credible evidence to support Nuzum was the perpetrator. Id. at ¶ 17. In

specific, there was witness testimony from those at the scene of the crime, and we found

it demonstrated Nuzum committed the burglary for which he was charged. Id.

       {¶ 44} Consistent with Nuzum and Grega, yet distinguishable from Kelley and

Breedlove, we find appellant in this case cannot show the outcome of his case would have



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been different had he been notified of the 404(B) evidence, or had that evidence not been

introduced. As noted above, we found that circumstantial evidence in the record supports

appellant was the perpetrator, and that the trier-of-fact properly evaluated the

photographic evidence and weighed it to determine that it spoke for itself.

       {¶ 45} As a result, we now hold that even if appellant would have received proper

notice of appellee’s intent to use the 404(B) evidence or, alternatively, even if White did

not testify and the clothing evidence was excluded, there was sufficient and competent,

credible evidence to find appellant guilty and convict him. Therefore, we cannot say that

the introduction of the 404(B) evidence prejudiced appellant, or that his trial counsel was

ineffective for failing to challenge the introduction of that evidence.

       {¶ 46} Accordingly, appellant’s third assigned error is not well-taken.

                                        Conclusion

       {¶ 47} The April 9, 2018 judgment of the Lucas County Court of Common Pleas

is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                          Judgment affirmed.

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


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Thomas J. Osowik, J.                                        JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


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




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