[Cite as State v. Lucas, 2011-Ohio-3935.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :      Hon. Julie A. Edwards, J.
                                            :      Hon. Patricia A. Delaney, J.
-vs-                                        :
                                            :
BENJAMIN LUCAS                              :      Case No. 10AP120047
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Apeal from the Court of Common Pleas,
                                                Case No. 2009CR080209



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                         August 5, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

PATRICK J. WILLIAMS                             JASON L. JACKSON
125 East High Avenue                            P.O. Box 308
New Philadelphia, OH 44663                      Uhrichsville, OH 44683
Tuscarawas County, Case No. 10AP120047                                                   2

Farmer, P.J.

       {¶1}    On August 19, 2009, the Tuscarawas County Grand Jury indicted

appellant, Benjamin Lucas, on one count of breaking and entering in violation of R.C.

2911.13, two counts of safecracking in violation of R.C. 2911.31, one count of theft in

violation of R.C. 2913.02, one count of petty theft in violation of R.C. 2913.02, one count

of grand theft in violation of R.C. 2913.02, and one count of burglary in violation of R.C.

2911.12. Said charges arose from the breaking and entering and thefts from Stoney

Point Lumber and a private residence owned by Walter and Karen McPherson.

       {¶2}    A jury trial commenced on October 5, 2010. The jury found appellant

guilty as charged. By judgment entry filed November 17, 2010, the trial court sentenced

appellant to an aggregate term of three years in prison.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}    "THE CONVICTION OF BENJAMIN LUCAS WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

                                            II

       {¶5}    "BENJAMIN LUCAS WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL DURING HIS TRIAL."

                                             I

      {¶6}     Appellant claims his convictions were against the manifest weight of the

evidence as the chief witnesses against him, David Cleveland and Ashley Baker, lacked
Tuscarawas County, Case No. 10AP120047                                                    3


credibility, and the only evidence against him concerning the Stoney Point Lumber

break-in was limited to safecracking. We disagree.

       {¶7}   On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

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

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new

trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175.

       {¶8}   Appellant was convicted on one count of breaking and entering in violation

of R.C. 2911.13 which states the following:

       {¶9}   "(A) No person by force, stealth, or deception, shall trespass in an

unoccupied structure, with purpose to commit therein any theft offense, as defined in

section 2913.01 of the Revised Code, or any felony.

       {¶10} "(B) No person shall trespass on the land or premises of another, with

purpose to commit a felony."

       {¶11} Appellant was also convicted on two counts of safecracking in violation of

R.C. 2911.31 which states, "(A) No person, with purpose to commit an offense, shall

knowingly enter, force an entrance into, or tamper with any vault, safe, or strongbox."

       {¶12} Appellant was also convicted on one count each of grand theft, petty theft,

and theft in violation of R.C. 2913.02 which states:
Tuscarawas County, Case No. 10AP120047                                                  4


       {¶13} "(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:

       {¶14} "(1) Without the consent of the owner or person authorized to give

consent;

       {¶15} "(2) Beyond the scope of the express or implied consent of the owner or

person authorized to give consent;

       {¶16} "(3) By deception;

       {¶17} "(4) By threat;

       {¶18} "(5) By intimidation."

       {¶19} Lastly, appellant was convicted of burglary in violation of R.C. 2911.12

which states:

       {¶20} "(A) No person, by force, stealth, or deception, shall do any of the

following:

       {¶21} "(1) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, when another person other than

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

the separately secured or separately occupied portion of the structure any criminal

offense;

       {¶22} "(2) Trespass in an occupied structure or in a separately secured or

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

habitation of any person when any person other than an accomplice of the offender is
Tuscarawas County, Case No. 10AP120047                                                     5


present or likely to be present, with purpose to commit in the habitation any criminal

offense;

      {¶23} "(3) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, with purpose to commit in the

structure or separately secured or separately occupied portion of the structure any

criminal offense;

      {¶24} "(4) Trespass in a permanent or temporary habitation of any person when

any person other than an accomplice of the offender is present or likely to be present."

      {¶25} Appellant was convicted of breaking and entering into Stoney Point

Lumber and the McPherson residence and the safe/lockbox contained therein.

                                  Stoney Point Lumber

      {¶26} Mark Shrock, owner of Stoney Point Lumber, testified the lumber store

was broken into between November 17 and 19, 2007. T. at 102-103. A safe that was

nailed to a counter was ripped away. T. at 105. The safe contained business checks,

personal checks made out to Mr. Shrock, business documents, and small envelopes

with cash. T. at 106-107.

      {¶27} David Cleveland, brother of Tim Cleveland who is appellant's longtime

friend, testified that appellant admitted to him that "they [appellant and Tim] got a safe

and they worked hard all night long and tore into the bottom of it." T. at 138. The

contents included "business checks, checkbooks, receipts, little bit of change and little

bit of dollars." Id. Appellant transported the safe in his mother's vehicle and opened it

at her home. T. at 139-140. Appellant told David after the safe was opened, it was
Tuscarawas County, Case No. 10AP120047                                                 6


thrown into the Tuscarawas River. T. at 138. This occurred close to Thanksgiving

2007. Id.

       {¶28} Ashley Baker, appellant's girlfriend at the time of the incidents, overheard

appellant, Tim, and her father, James Baker, discussing how to open the safe. T. at

148. This conversation occurred around Thanksgiving 2007. Id. They left to open the

safe at appellant's mother's house after transporting it in her vehicle. T. at 149. After

appellant returned, appellant told Ms. Baker that it took them all night to open the safe

and they only found business checks and a little bit of money. T. at 151. He told her

they "got rid" of the safe. Id. Appellant admitted he was part of the "safe job." T. at

161. Appellant told her they got the safe from the "Amish." T. at 150.1

       {¶29} Upon review, we find sufficient evidence that appellant participated in the

breaking and entering of Stoney Point Lumber by admitting "they got a safe" and the

admission that they got it from the "Amish." These statements to Ms. Baker and David

are bolstered by the parallel testimony regarding the opening, contents, and disposal of

the safe.

                                 McPherson Residence

       {¶30} Karen McPherson testified sometime between December 27, 2007 and

January 2, 2008, a lockbox containing $8,000 was taken from her home. T. at 119.

Just prior to the discovery of the loss, the McPhersons were driving home and passed

Tim's "smaller green car" driving slowly away from the general vicinity of their home. T.

at 121-122. The car contained Tim and another individual. T. at 122. Tim did odd jobs

for the McPhersons. T. at 122-123. Just prior to the break-in, Tim moved a computer

1
 Mr. Shrock, is Amish and his business is located in what is known as "Amish Country"
in Sugarcreek, Ohio. T. at 102, 216.
Tuscarawas County, Case No. 10AP120047                                               7


for the McPhersons from upstairs to the downstairs office where the lockbox was

located. T. at 123-124. Tim was aware of the location of the lockbox. T. at 125.

Nothing else in the home was disturbed or missing. T. at 126. As Mrs. McPherson

stated, it looked like "[t]hey would have known exactly what they were looking for and

where it was." Id.

       {¶31} After this break-in, appellant and Tim appeared flush with money, although

neither was employed. T. at 153. They invited Ms. Baker's father to accompany them

to Wheeling, West Virginia to gamble. T. at 152. When Mr. Baker hesitated because

he had little cash, appellant assured him " 'That's okay, we got it.' " Id.

       {¶32} After the Wheeling trip, appellant had a "chunk of money." T. at 154.

During "pillow talk" with Ms. Baker, appellant admitted that he and Tim got the money

from the McPherson home. T. at 155. Appellant told Ms. Baker he was in the car being

"lookout" while Tim went in and returned with the lockbox. T. at 156. There was $8,000

in the box and appellant received $3,200. Id. Appellant stated he was uneasy about

the situation because the McPhersons had seen them "as they were coming down the

road." T. at 157. They were driving Tim's "little green car." Id. Appellant watched Tim

bust open the box while they were together after the break-in. T. at 163.

       {¶33} We find appellant's admissions to be sufficient if the jury believed Ms.

Baker.2 One witness, believed by a jury, is sufficient to establish a fact.   State v.

Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881.

       {¶34} Upon review, we find no manifest miscarriage of justice.

       {¶35} Assignment of Error I is denied.

2
 Ms. Baker's credibility was attacked on cross-examination as a cocaine, drug, and
alcohol abuser. T. at 159-160.
Tuscarawas County, Case No. 10AP120047                                                     8


                                              II

       {¶36} Appellant claims he was denied the effective assistance of trial counsel as

his counsel failed to contact a witness who could have established an alibi defense for

the Stoney Point Lumber break-in. Appellant further claims he received bad advice

from his counsel about not taking the stand and testifying in his own defense. We

disagree.

       {¶37} The standard this issue must be measured against is set out in State v.

Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari

denied (1990), 497 U.S. 1011. Appellant must establish the following:

       {¶38} "2. Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable    representation    and,   in   addition,   prejudice   arises   from   counsel's

performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;

Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

followed.)

       {¶39} "3. To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant 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."

       {¶40} This court must accord deference to defense counsel's strategic choices

made during trial and "requires us to eliminate the distorting effect of hindsight." State

v. Post (1987), 32 Ohio St.3d 380, 388.

       {¶41} There is only one mention of an alibi witness and that was during the

sentencing hearing:
Tuscarawas County, Case No. 10AP120047                                                   9


       {¶42} "***The only person that could say where I was at on that night she moved

away to Florida and I had no way to contact her until I got released to get ahold of her

and find out if I could get her up here for a witness on my behalf and stuff. It's been a

long drawn out mess for a very short time that I was around those folks.***" November

16, 2010 T. at 10.

       {¶43} We find this is insufficient to establish in the record ineffective assistance

of trial counsel on the issue of an alibi witness.

       {¶44} Appellant further claims he was advised not to testify. The record contains

no information on this issue. We note during a recess, defense counsel told the trial

court he needed to talk to his client in order to determine if he would have any

witnesses. T. at 168. The trial court then advised the jury of the following:

       {¶45} "THE COURT: Ladies and gentlemen, when you were away for the recess

I asked Mr. Williams if he was going to be presenting any more witnesses and he said

no. He asked that I admit into evidence the exhibits which have been marked, they're

photographs, which have been marked A and B. Mr. Infantino had no objection. These

have been admitted so they'll be given to you in the jury room for your review when you

deliberate.

       {¶46} "After Mr. Williams asked me to admit those exhibits he then informed me

that he was resting his case against Mr. Lucas on the charges in the indictment relating

to both of the dates, November 19th, 2007 and January 2nd, 2008.

       {¶47} "I then asked Mr. Infantino if he was going to present evidence in the

defense of the indictment and he indicated to me that he was resting without presenting

evidence.     So there will be no defense evidence in the case and remember my
Tuscarawas County, Case No. 10AP120047                                              10


instruction about that. And then Mr. Williams of course would have no rebuttal evidence

because there's no defense evidence that's going to be able to be rebutted, or attempt

to rebut could be made.

      {¶48} "So, the evidence is closed, all the evidence relating to these charges is

now presented to you." T. at 168-169.

      {¶49} There is no evidence in the record that appellant wished to testify.

      {¶50} Appellant also claims his trial counsel's cross-examination of the

witnesses was limited and at times non-existent. Defense counsel had no reason to

extensively cross-examine Mr. Shrock and Mrs. McPherson. They were referred to in

closing argument as "the Ward Clever's of the world." T. at 216. The deputies who

testified added nothing to the contested facts of the case, the identification of the

offenders.

      {¶51} We have reviewed the entire transcript and find only one deficiency.

During the cross-examination of David Cleveland, defense counsel asked, "Okay. How

did you know about the safe?" and the response was, "Because my brother told me he

was gonna get it." T. at 142. The prosecutor then asked him on re-direct "Mr. Infantino

asked you basically what Tim Cleveland told you. Did he indicate that Mr. Lucas was

involved in the break-in at Stoney Point?" T. at 144. David responded, "Yes, he did."

Id.

      {¶52} Under the second prong of Bradley, supra, we find the questions that were

left open by the cross-examination did not affect the outcome of the trial. As we found

in Assignment of Error I, there were sufficient separate admissions by appellant of his

own culpability to establish necessary proof despite the cited question.
Tuscarawas County, Case No. 10AP120047                                          11


      {¶53} Assignment of Error II is denied.

      {¶54} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, P.J.

Edwards, J. and

Delaney, J. concur.




                                           _s/ Sheila G. Farmer__________________




                                           _s/ Julie A. Edwards__________________




                                           s/ Patricia A. Delaney_________________

                                                          JUDGES


SGF/sg 706
Tuscarawas County, Case No. 10AP120047                                       12


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
BENJAMIN LUCAS                          :
                                        :
       Defendant-Appellant              :        CASE NO. 10AP120047




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.

Costs to appellant.




                                        _s/ Sheila G. Farmer__________________




                                        _s/ Julie A. Edwards__________________




                                        s/ Patricia A. Delaney_________________

                                                        JUDGES
