[Cite as State v. Scurlock, 2017-Ohio-1219.]




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


State of Ohio                                      Court of Appeals No. L-15-1200

        Appellee                                   Trial Court No. CR0201402804

v.

James Scurlock                                     DECISION AND JUDGMENT

        Appellant                                  Decided: March 31, 2017

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, Brenda J.
        Majdalani and Frank H. Spryszak, Assistant Prosecuting
        Attorneys, for appellee.

        Timothy W. Longacre, for appellant.

                                               *****

        JENSEN, P.J.

        {¶ 1} James Scurlock appeals the judgment of the Lucas County Court of

Common Pleas convicting him of theft from an elderly or disabled adult in violation of

R.C. 2913.02(A)(1) and (B)(3), a felony of the fifth degree. For the reasons that follow,

we affirm the decision of the trial court.
      {¶ 2} On July 13, 2013, Scurlock removed the contents of a safe deposit box he

co-leased with his mother, Tina Carroll. Carroll reported to the police that over $350,000

in cash and jewels had been taken by Scurlock, without her permission.

      {¶ 3} Scurlock was indicted by the Lucas County Grand Jury on one count of theft

from an elderly or disabled adult in violation of R.C. 2913.02(A)(1) and (B)(3), a felony

of the second degree. The case was assigned to the Hon. Linda J. Jennings.

      {¶ 4} Scurlock entered a plea of not guilty.

      {¶ 5} A jury trial commenced on May 12, 2015, before the Hon. Frederick H.

McDonald, a retired judge of the Lucas County Court of Common Pleas, sitting by

assignment. The following evidence was adduced at trial.

      {¶ 6} Tina Carroll suffers from reflex sympathetic dystrophy and is unable to

work. Since the mid-1990’s she has received permanent total disability benefits from the

Social Security Administration. At the time of trial, Carroll was 63 years old and was

receiving $1,440 per month in benefits.

      {¶ 7} Carroll testified that when her mother passed away in 1998, she inherited

$100,000 in cash and approximately $20,000 in savings bonds. Carroll deposited the

inheritance in an account at the Toledo Area Catholic Credit Union. A few years later,

Carroll opened a safe deposit box at Charter One Bank. Over time, Carroll transferred

her inheritance from the credit union account to the Charter One safe deposit box.




2.
       {¶ 8} From 2002 through 2007, Carroll was gifted $7,000 annually from her great-

aunt Fran for a total of $42,000. Carroll put the money from her great-aunt “under her

mattress” in her home.

       {¶ 9} At some point in time, Scurlock borrowed $15,000 or $16,000 from Carroll

for a down payment on a house. Carroll and Scurlock opened a joint savings account at

Huntington Bank so that Scurlock could regularly and conveniently make payments to his

mother on the loan. For several months, Scurlock’s employer withheld $20 a week from

Scurlock’s paycheck and deposited it into the joint savings account.

       {¶ 10} Upon opening the joint savings account, Huntington Bank offered Carroll

and her son a rent-free safe deposit box. Carroll and Scurlock accepted the offer. As co-

lessees, they were each issued a key to the box. Over time, Carroll transferred the

contents of her Charter One safe deposit box to the box she jointly leased with her son.

       {¶ 11} In late-November or early-December 2008, Carroll’s home was burglarized

and the key to the Huntington safe deposit box was stolen. Carroll was afraid someone

would access the box so she asked Scurlock to accompany her to Huntington National

Bank. Upon arrival, Carroll and Scurlock entered into a new safe deposit box agreement

and moved the contents of the old safe deposit box into a new safe deposit box. Once

again, Carroll and Scurlock were each given a key to the box.

       {¶ 12} Carroll testified that in late-2009, Scurlock stopped making his weekly loan

payments. She also testified that on various occasions Scurlock withdrew money from

the joint savings account without her permission. Frustrated, Carroll closed the joint




3.
savings account. Carroll decided that it was necessary to revoke Scurlock’s access to the

joint safe deposit box. When she asked Scurlock to return his safe deposit box key,

Scurlock indicated that he had lost the key.

       {¶ 13} In April 2010, Carroll attempted to remove Scurlock as co-lessee from the

safe deposit box by filling out a “deputy revocation” form at Huntington Bank. Carroll

signed Scurlock’s name on the document without his consent. At trial, Carroll testified

that when filling out the form, she signed her son’s name only because a bank employee

instructed her to do so. She asserted that she would never purposely forge an individual’s

signature on a legal document.

       {¶ 14} In September or November of 2012, Carroll placed the $42,000 she

received from her great-aunt in the Huntington safe deposit box. She also placed several

pieces of jewelry in the box.

       {¶ 15} In March 2013, Ms. Carroll underwent surgery at the University of Toledo

Medical Center. She experienced complications that resulted in an extended stay at the

hospital. While hospitalized, Carroll and Scurlock had a falling out. On April 23, 2013,

Scurlock sent his mother a text indicating, “I want nothing more to do with you and I will

be cutting off your cellphone today.” In May 2013, Carroll’s medical condition

worsened. Doctors were uncertain whether she would survive. Carroll’s deteriorating

condition was communicated to Scurlock through family members. Despite her failing

health, Scurlock refused to communicate with his mother or visit her in the hospital.




4.
       {¶ 16} Carroll’s health improved. She was released from the hospital in late-

August 2013. On March 10, 2014, Carroll went to Huntington Bank. When the bank

employee brought her the safe deposit box signature card, Carroll noticed that someone

had signed the card on July 13, 2013. When she opened the safe deposit box, it was

empty. Carroll was in shock. Her money and jewelry were gone.

       {¶ 17} The next day, Carroll went back to the bank to retrieve a copy of the safe

deposit box signature card. From there, she called the police. The original police report

indicates $350,000 cash and jewelry were stolen from the safe deposit box. On cross-

examination, Carroll indicated that the amount on the report was a “guesstimation.” She

had “been up for two days” texting her son and trying to figure out why he would take

her life savings and jewelry from the safe deposit box.

       {¶ 18} After a police report was filed, Scurlock informed his mother that he would

return the contents of the safe deposit box. On March 14, 2014, Scurlock’s daughter, on

behalf of her father, delivered a sealed cardboard box to Carroll. Carroll testified that the

cardboard box contained eight envelopes. Each envelope contained cash. On the outside

of one envelope was the word “Stephanie” in Carroll’s handwriting. The envelope

contained $5,000 in $20 bills. Carroll explained that Stephanie is Scurlock’s daughter,

her oldest grandchild. It total, the cash in the cardboard box was $20 short of $21,000.

Carroll removed $20 from her wallet and put it with the box so that the box contained an

even $21,000.




5.
      {¶ 19} Taking into consideration the amount of money returned to her, Carroll

reported to investigating officers that only $329,000 was missing from the safe deposit

box. In October 2014, investigating officers again asked Carroll how much money was

missing from the box. Carroll indicated that at least $177,401 was missing.

      {¶ 20} At trial, Carroll denied ever granting Scurlock permission to remove the

contents of the safe deposit box. She admitted that she had made a mistake initially in

reporting that $350,000 was stolen from the box. Carroll explained that she did not keep

an accurate record of the amount of money she placed in the box. She claimed, however,

that she was absolutely certain she had placed $100,000 in eight envelopes designated

specifically for her grandchildren ($25,000 for each of her four grandchildren). She

further claimed that the box contained the $42,000 Carroll had been gifted by her great-

aunt Fran, $10,000 she received when her great-aunt passed away, and undetermined

amount of additional money Carroll had specifically set aside to purchase a new car.

      {¶ 21} Keith Cox is a gaming investigator for the Ohio Casino Control

Commission. As a gaming investigator, Cox has access to the business records of the

Columbus Hollywood Casino. Cox testified that individuals who gamble at the casino

can sign up for a reward card. He offered a brief overview of records associated with the

reward card registered to Scurlock. He indicated that Scurlock’s win-loss total on game

tables for the 24 month period up to and including June 2013—after 219 trips to the

casino—was $58,892. The “buy in cash” amount on game tables for the same period was

$150,190. Cox explained that the “buy in cash” amount is a recycled dollar amount,




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“[s]o if I come in with 20,000 today and I walk even, I come in with the same 20,000

tomorrow, then I’m at 40,000 * * * according to casino records.” Cox indicated that

Scurlock’s win-loss total on slot machines for the 36 month period up to and including

January 2015—after 234 trips to the casino—was $17,363. The “buy in cash” amount on

slot machines for the same period was $178,498. Cox concluded that Scurlock lost

approximately $80,000 from August 2011 through January 2015.

       {¶ 22} On cross-examination, Cox explained that it would be easy for an

individual to utilize a reward card registered to someone else. He admitted there is no

way to know whether the money wagered on Scurlock’s reward card was wagered solely

by Scurlock.

       {¶ 23} Robert Baumgartner is an investigator assigned to the senior protection unit

of the Lucas County Prosecutor’s office. Baumgartner interviewed Scurlock about the

Huntington Bank safe deposit box. According to Baumgartner, Scurlock “found out

about the box when he took his mother, the first time, to the hospital and she informed

him that there was – here’s the key to the box, this is where it’s at, if anything happens to

me, go get the documents.” Scurlock admitted he accessed the box on July 13, 2013. He

further admitted that he removed eight envelopes from the safe deposit box and put them

in a safe at his home in Columbus, Ohio. Scurlock told Baumgartner that he did not open

any of the envelopes and that he returned all of the envelopes, along with the key, at his

mother’s request.




7.
          {¶ 24} Lola Scurlock testified that she has been married to the appellant for ten

years. Prior to trial, she and her husband regularly met eight of her relatives at the casino

in Columbus. Lola has a player’s reward card of her own, but when she goes to the

casino with her husband, she uses his card so that they can earn “comps” including free

meals. Lola testified that when they go to the casino with family members and friends,

“they all try to use one person’s card so that [they] can get free dinner at the end of the

night.”

          {¶ 25} Lola Scurlock indicated that she went to Huntington National Bank on

July 13, 2013, with her husband to retrieve “documents” out of Carroll’s safe deposit

box. Lola indicated that the box contained “six or seven envelopes.” She never looked

inside any of the envelopes.

          {¶ 26} The jury returned a verdict finding Scurlock guilty of theft in violation of

R.C. 2913.02(A)(1) and (B)(3). The jury further found that Carroll was a “disabled

person.” The jury was unable to agree on the value of the stolen property. After the

verdict was read, Judge McDonald indicated that the matter would be continued for

sentencing before Judge Jennings on July 1, 2015.

          {¶ 27} At Scurlock’s request, the July 1, 2015 sentencing hearing was continued.

On July 8, 2015, Scurlock appeared before Judge Jennings for sentencing. She sentenced

Scurlock to five years of community control. A restitution hearing was held before Judge

Jennings on July 22, 2015. On August 10, 2015, Judge Jennings issued a written order

requiring Scurlock to pay restitution to Carroll in the amount of $126,890.99 in regular




8.
monthly payments. Scurlock appealed. On September 10, 2015, we remanded the matter

to the trial court for a single revised sentencing entry. The trial court issued a revised

sentencing entry on September 24, 2015. It is from this entry that Scurlock now appeals,

assigning four errors for our review.

                                First Assignment of Error

       {¶ 28} In his first assignment of error, Scurlock contends that the gaming

investigator’s testimony was more prejudicial than probative and should have been

excluded under Evid.R. 403(A). Specifically, Scurlock argues that the testimony

regarding his casino reward card was “meaningless” and “incredibly misleading.” The

state retorts that the testimony was relevant to “establish Appellant’s motive, plan and

intent in committing the theft offense charged.”

       {¶ 29} Evid.R. 403(A) provides: “[a]lthough relevant, evidence is not admissible

if its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” A trial court has “broad discretion in

determining whether unfair prejudice substantially outweighs probative value under

Evid.R. 403(A).” State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150,

¶ 171. “A reviewing court will not interfere absent a clear abuse of that discretion.” Id.

       {¶ 30} At trial, Keith Cox explained that casino records reflect a loss on

Scurlock’s card of approximately $80,000 from January 2012 through February 2015.

The state contends that Mr. Cox’s testimony was more probative than prejudicial because

“$80,000 is a staggering amount to lose” and “[t]he money gambled away had to come




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from somewhere.” The state argues that “Mr. Cox’s testimony tends to establish that

Appellant’s purpose for the offense was [to] use to his mother’s money to fund his and

his family’s gambling habit.”

       {¶ 31} There was rebuttal testimony proffered, that once a month eight of Lola

Scurlock’s family members drove to Columbus to gamble at the casino with the

Scurlocks. Lola indicated that when they gambled together they always utilized one

person’s card so that they would “get free dinner at the end of the night.” There is no

evidence introduced regarding the income or financial resources of Scurlock, his wife, or

the family members and friends who utilized Scurlock’s reward card, nor was there any

testimony that Scurlock’s gambling habit after July 13, 2013, was any different than his

habit prior to that date.

       {¶ 32} One cannot dispute that evidence of Scurlock’s “gambling habit” is

prejudicial to his defense. However, Evid.R. 403(A) does not “attempt to bar all

prejudicial evidence.” State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d

302, ¶ 23. Instead, the rule provides that only unfairly prejudicial evidence is excludable.

Id. The Supreme Court of Ohio has described “unfairly prejudicial evidence” as evidence

that “might result in an improper basis for a jury decision.” Oberlin v. Akron General

Med. Center, 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001). Evidence may be unfairly

prejudicial if it “arouses the jury’s emotional sympathies, evokes a sense of horror, or

appeals to an instinct to punish.” Id. “Usually, although not always, unfairly prejudicial




10.
evidence appeals to the jury’s emotions rather than intellect.” Id. citing Weissenberger’s

Ohio Evidence (2000) 85-87, Section 403.3.

       {¶ 33} Here, the gaming investigator’s testimony was analytic rather than emotive.

Rarely does a discussion of business records, casino accounting methods, and an

individual’s gaming activity elicit a sense of horror or instinct to punish. Cox was

forthright about the compounding nature of casino’s “recycled dollar” accounting

methods to explain how, over a 36-month period, the records show that $178,498 was

wagered on Scurlock’s card on slot machines, and how, over a 24-month period, the

records show $150,190 was wagered on Scurlock’s card on game tables.

       {¶ 34} On cross-examination, Cox was frank about how easy it would be to utilize

another player’s reward card:

              Q. * * * Is it impossible to have someone else use your card?

              A. No.

              Q. Happen a lot?

              A. I mean, it can happen, easy.

              Q. Let’s say, if you have a wife and Mr. Scurlock had the card but

       him and – he and his wife go and used his card, would you be able to

       differentiate whether he was using the card actually or his wife was using

       the card?

              A. No.




11.
              Q. How about if he was using the card or his buddy?

              A. No.

              Q. So it’s plausible that anybody could have used that card?

              A. Yes.

              Q. Go with a bunch of friends, he wants to build up his points, free

       lunches?

              A. I guess. Those numbers refer to the card.

       {¶ 35} While we find little probative value in the proffered evidence, we are not

convinced that Cox’s analytical testimony aroused the emotional sympathies of the jury.

Further, as will be discussed with respect to appellant’s second assignment of error, we

cannot say that the testimony resulted in an improper basis for a jury decision as there

was a substantial amount of credible evidence presented that Scurlock purposefully and

wrongfully removed the contents from the subject safe deposit box.

       {¶ 36} While the probative value of Cox’s testimony was limited, it was not

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury. Scurlock’s first assignment of error is not well-taken.

                              Second Assignment of Error

       {¶ 37} In his second assignment of error, Scurlock challenges both the sufficiency

and manifest weight of the evidence.




12.
                                Sufficiency of the Evidence

       {¶ 38} Whether the evidence is legally sufficient to sustain a verdict is a question

of law. State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). To resolve a

sufficiency challenge, we must determine, “whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 39} Under R.C. 2913.02(a)(1), “[n]o person, with purpose to deprive the owner

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

services * * * [w]ithout the consent of the owner.” Under R.C. 2913.02(B)(3), “if the

victim of the offense is [a] * * * disabled adult * * * a violation of this section is theft

from a person in a protected class * * *.

       {¶ 40} In support of his contention that his conviction was not supported by

sufficient evidence, Scurlock argues that there was no evidence that he intended to

deprive Carroll of her property because “he was just as much the owner of the safety

deposit box, and thereby its contents, as Carroll by virtue of the joint lease agreement for

the safety deposit box.”

       {¶ 41} Sufficient evidence exists that Scurlock, without permission, knowingly

exerted control over the contents of the safe deposit box with the purpose of depriving his

mother, a disabled adult, of the property. Carroll testified that she inherited $100,000

from her mother and decided to set it aside for her grandchildren’s college expenses. She




13.
put cash in eight envelopes. On the outside of each envelope she wrote the name of one

of her four grandchildren. She put the envelopes, along with additional money and

jewelry in a safe deposit box.

       {¶ 42} Carroll testified that she never gave Scurlock permission to take the

contents out of the safe deposit box she co-leased with him. In Ohio “[n]o passage of

title occurs merely by placing property in a joint safe deposit box.” In re Estate of Lawn,

90 Ohio Law Abs. 308, 314 (P.C.1962), citing In re Estate of Copeland, 74 Ohio App.

164, 58 N.E.2d 64 (4th Dist.1943).

       {¶ 43} Scurlock’s wife testified that she was with Scurlock when he removed the

contents of the safe deposit box. After Carroll discovered the empty box and reported its

contents missing to police, Scurlock returned what Scurlock’s wife described as

everything from inside the box. According to Carroll, however, the cash returned

represented only a portion of what had been inside the box. Viewed in a light most

favorable to the prosecution, a rational juror could have found the essential elements of

theft beyond a reasonable doubt.

                                     Manifest Weight

       {¶ 44} There being sufficient evidence to support the conviction as a matter of

law, we next consider the claim that the judgment was against the manifest weight of the

evidence. “In considering a manifest-weight claim, the appellate court ‘review[s] the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury




14.
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. Walker, Slip Opinion No. 2016-

Ohio-8295, ¶ 32, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). A conviction should be reversed as against the manifest weight of the

evidence only in the most exceptional case in which the evidence weighs heavily against

the conviction. See Martin.

       {¶ 45} Although we review credibility when considering the manifest weight of

the evidence, we are cognizant that determinations regarding the credibility of witnesses

and the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th

Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967). The trier of fact is best able “‘to view the witnesses and

observe their demeanor, gestures, and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.’” State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24, quoting Seasons Coal Co., Inc. v.

Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). The trier of fact may take note of

any inconsistencies in the evidence and resolve them accordingly, “believ[ing] all, part,

or none of a witness’s testimony.” 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).

       {¶ 46} There are several inconsistences in the record that reflect on the credibility

of the testimony proffered. According to investigating officers, Scurlock only found out

about the safe deposit box when his mother was first admitted into the hospital.




15.
However, the state produced documents from the bank indicating the safe deposit box

was shared by Scurlock and his mother. Further, there was testimony that Scurlock and

his mother had a “falling out” while she was hospitalized. Yet, Lola Scurlock testified

that she and her husband were doing Carroll “a favor” by holding onto the contents of the

safe deposit box. Yet, the Scurlocks failed to extend the favor of visiting Carroll in the

hospital when they drove to Toledo from Columbus to remove the contents of the safe

deposit box.

       {¶ 47} Carroll testified that she set aside equal amounts of money for each of her

four grandchildren. Yet, of the monies returned to Carroll, only a portion was earmarked

for a grandchild and the grandchild was Scurlock’s daughter. Despite Carroll’s inability

to pinpoint the exact amount of money she had placed in the safe deposit box, the jury

found Carroll’s testimony more credible than that of Lola Scurlock.

       {¶ 48} Upon review of the record, we find that this is not the exceptional case

where the evidence weighs heavily against appellant’s conviction. Accordingly, the jury

did not lose its way in finding Scurlock guilty of the theft offense. Scurlock’s second

assignment of error is not well-taken.

                               Third Assignment of Error

       {¶ 49} In his third assignment of error, Scurlock contends that the trial court erred

when it ordered him to pay $126,890.99 in “damages” despite the jury’s inability to agree

on the monetary value of the stolen property. Scurlock seeks an order remanding the




16.
matter to the trial court for a “finding of zero damages in accordance with the findings of

the jury.”

       {¶ 50} The “damages” referenced by Scurlock in this assignment of error are, in

fact, “restitution,” a financial sanction imposed by the court as part of a sentence. R.C.

2929.18(A)(1) allows a trial court to order “restitution by the offender to the victim of the

offender’s crime * * * in an amount based on the victim’s economic loss.” See State v.

Lowe, 1st Dist. Hamilton No. C-130048, 2013-Ohio-4224, ¶ 3.

       {¶ 51} The Supreme Court of Ohio has held that a trial court choosing to order

restitution in a theft case is not restricted to the value corresponding to the level of felony

proven at trial. State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶

24. Rather, it may award restitution pursuant to R.C. 2929.12(A). Id.

       {¶ 52} Here, the Lucas County Grand Jury issued a one count indictment alleging

Scurlock stole property from a disabled adult and that the value of the property was

$37,500, or more, and less than $150,000. At trial, all twelve jurors agreed that theft

from a disabled adult occurred. However, the jurors were unable to agree on the value of

the stolen property. Ten jurors found the value of the property was identical to the value

set forth in the indictment, while two jurors found that the value of the property was

$7,500, or more, and less than $37,500. Because the jurors were not able to agree on the

value of the theft beyond a reasonable doubt, the court was required to enter a guilty

verdict on the lesser included offense.




17.
       {¶ 53} The trial court decided to impose restitution. However, the parties were

unable to agree on the amount of Carroll’s economic loss. Thus, Carroll had the burden

to prove, by a preponderance of the evidence, the amount of restitution sought from

Scurlock. State v. Daniels, 1st Dist. Hamilton, No. C-150042, 2015-Ohio-5348, ¶ 35.

       {¶ 54} At the restitution hearing, Carroll described how and when she placed

various sums of money in the safe deposit box. She acknowledged she did not know,

with certainty, the amount of money in the box on the day her son removed its contents.

R.C. 2929.18(A)(1) gives a sentencing court discretion to order restitution but not in an

amount greater than the amount of economic loss suffered by the victim as a direct and

proximate result of the commission of the offense.

       {¶ 55} On August 10, 2015, the trial court issued a written order describing, in

detail, how it came to the conclusion that Carroll suffered $126,890.99 in economic loss

as a result of the theft. Appellant does not challenge the trial court’s calculations. We

find no error in the trial court’s decision to order restitution in this matter despite the

jury’s inability to unanimously agree on the value of the stolen property. Scurlock’s third

assignment of error is not well-taken.

                                Fourth Assignment of Error

       {¶ 56} In his fourth assignment of error, Scurlock contends that the trial court

erred to his prejudice when the judge who presided over the trial, a retired visiting judge

sitting by assignment, did not preside over the sentencing.




18.
       {¶ 57} Crim.R. 25(B) states, in pertinent part: “If for any reason the judge before

whom the defendant has been tried is unable to perform the duties of the court after a

verdict or finding of guilt, another judge designated by the administrative judge * * *

may perform those duties. “ The Ohio Supreme Court has held that this rule

“inferentially commands that unless unable to do so, the judge who presided at a criminal

trial must also preside at post-conviction proceedings, including sentencing.” Beatty v.

Alston, 43 Ohio St.2d 126, 127, 330 N.E.2d 921 (1975). However, the Supreme Court

has further held that a defendant who fails to timely object to the substitution of a judge

waives his right to challenge the reassignment:

       Any party objecting to a reassignment must raise that objection at the first

       opportunity to do so. If the party has knowledge of the transfer with

       sufficient time to object before the new judge takes any action, that party

       waives any objection to the transfer by failing to raise that issue on the

       record before the action is taken.” State v. Ross (In re Cirigliano), 105

       Ohio St.3d 1223, 2004-Ohio-7352, 826 N.E.2d 287, ¶ 26, quoting Berger v.

       Berger, 3 Ohio App.3d 125, 131, 443 N.E.2d 1375 (8th Dist.1981),

       overruled on other grounds, Brickman & Sons., Inc. v. National City Bank,

       106 Ohio St.3d. 30, 2005-Ohio-3559, 830 N.E.2d 1151.

       {¶ 58} It is undisputed that Judge Frederick McDonald is a retired judge who was

assigned by the Chief Justice to preside in the Lucas County Court of Common Pleas for

a specific period of time. While assigned to the court, Judge McDonald presided over the




19.
trial of this matter. At the conclusion of the trial, Scurlock raised no objection when

Judge McDonald indicated the matter would be transferred back to Judge Jennings’

docket for sentencing. Despite ample opportunity prior to sentencing, Scurlock failed to

raise the issue on the record. Thus, Scurlock waived his right to challenge the authority

of the sentencing judge. Scurlock’s fourth assignment of error is not well-taken.

                                        Conclusion

       {¶ 59} For the reasons set forth above, the judgment of the trial court is affirmed.

The costs of this appeal are assessed to appellant under App.R. 24. The stay of sentence

entered by this court on September 9, 2015 is withdrawn.

                                                                        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.



Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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