[Cite as State v. Hardman, 2012-Ohio-2453.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. Julie A. Edwards, J.
-vs-
                                                 Case No. 11CAA110107
HOLLIE HARDMAN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Delaware County Court of
                                              Common Pleas, Case No. 11CR-I-09-0471


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY                         May 31, 2012


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


CAROL HAMILTON O'BRIEN                        LINDA KENDRICK
Prosecuting Attorney                          79 North Sandusky Street
ERIC C. PENKAL                                Delaware, Ohio 43015
Assistant Proseucting Attorney
140 N. Sandusky Street 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 11CAA110107                                                    2

Hoffman, J.


       {¶1}   Defendant-appellant Hollie Hardman appeals his conviction entered by the

Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 4, 2011, a Dark Blue H3 Hummer SUV vehicle was reported

stolen to the Delaware City Police Department.        Early that same morning, Clifford

Hubbard, Sr. contacted the Delaware Police Department to report an individual

criminally damaging his yard with a large, dark SUV. Appellant lived with Hubbard at the

time of the incident.

       {¶3}   Later the same day, Officer Madden of the Delaware Police Department

spoke with Appellant regarding the incident.

       {¶4}   Appellant responded he was not involved with driving the SUV before

Officer Madden had an opportunity to question him regarding the incident.

       {¶5}   Later in the afternoon, Appellant was seen by Officer Willauer of the

Delaware Police Department driving the stolen vehicle, after a license plate search

confirmed the identification of the vehicle. Upon being seen by the officer, Appellant left

the vehicle in a driveway, and fled on foot. Appellant was then apprehended by law

enforcement with Gregory Houston, Jr.

       {¶6}   Appellant was indicted on one count of receiving stolen property, in

violation of R.C. 2913.51(A), a fourth degree felony. Following a jury trial, Appellant

was convicted of the charge, and sentenced to eighteen months in prison.

       {¶7}   Appellant now appeals, assigning as error:
Delaware County, Case No. 11CAA110107                                                          3


       {¶8}    “I. THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE A

MATERIAL WITNESS WAS NOT PRESENT TO TESTIFY AT TRAIL [SIC].

       {¶9}    “II. THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE HE DID

NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶10} “III. DEFENDANTS CONVICYION [SIC] WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                                 I & II.

       {¶11} Appellant’s first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

       {¶12} Appellant asserts he was denied the effective assistance of counsel and

the right to a fair trial as his trial counsel failed to secure the trial testimony of a material

witness.      Specifically, Appellant argues his trial counsel failed to secure the trial

testimony of Gregory Houston, Jr. The prosecution had filed a subpoena for Gregory

Houston, Jr. to appear as a witness at trial. Houston was also listed as a witness in the

trial brief filed by the State.    However, the State decided not to call Houston as a

witness at trial, and Appellant’s counsel had not subpoenaed him to appear. Nor did

trial counsel move the trial court for a continuance to secure Houston’s testimony.

       {¶13} The standard for ineffective assistance of counsel 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:

       {¶14} “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
Delaware County, Case No. 11CAA110107                                                    4

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.)

       {¶15} “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.”

       {¶16} Appellant cites Section 10, Article I of the Ohio Constitution which

provides an accused shall have compulsory process to procure the attendance of

witnesses in his behalf. Appellant asserts he was denied his right to present Houston, a

material witness, to establish his defense, because his defense counsel was aware the

witness had been subpoenaed by the State and erroneously presumed the witness

would be available for him to question. Further, counsel failed to request a continuance

once it was learned Houston was not to be presented as a witness by the prosecution.

Appellant maintains Houston was a material witness as he was in the vehicle when it

was observed by Officer Willauer, and he would have shed light on the facts and

Appellant's knowledge as to whether the vehicle was stolen.

       {¶17} Appellant's right to compulsory process does not include the right to have

the State locate or call witnesses on his behalf. Lancaster v. Green, 175 Ohio St.203,

(1963). Appellant speculates Houston's testimony would have supported his defense

but there is no record evidence to support this speculation.              Appellant has not

demonstrated there exists a reasonable probability the outcome of the trial would have

been otherwise but for counsel's alleged error.         Accordingly, the first and second

assignments of error are overruled.
Delaware County, Case No. 11CAA110107                                                  5


                                                  III.

       {¶18} In the third assignment of error, Appellant asserts his conviction for

receiving stolen property is against the manifest weight of the evidence.

       {¶19} 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.

       {¶20} Appellant was convicted of one count of receiving stolen property, in

violation of R.C. 2913.51(A), which reads:

       {¶21} "(A) No person shall receive, retain, or dispose of property of another

knowing or having reasonable cause to believe that the property has been obtained

through commission of a theft offense."

       {¶22} In this case, there was ample evidence to support Appellant's conviction.

A vehicle was reported damaging property at the residence where Appellant lived, and

the vehicle matched the description of the vehicle reported stolen. Later the same day,

Officer Willauer of the Delaware Police Department observed Appellant driving the

stolen vehicle. When Appellant saw law enforcement, he ditched the stolen vehicle

along the side of the road, and fled the scene.          When questioned by the police,

Appellant gave several inconsistent stories, and incriminated his passenger Houston.
Delaware County, Case No. 11CAA110107                                                    6


       {¶23} Based upon the above, we find Appellant's conviction for receiving stolen

property is not against the manifest weight of the evidence, and the jury did not lose its

way in convicting Appellant of the charge. The third assignment of error is overruled.

       {¶24} Appellant's conviction entered by the Delaware County Court of Common

Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Edwards, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS
Delaware County, Case No. 11CAA110107                                          7


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
HOLLIE HARDMAN                          :
                                        :
       Defendant-Appellant              :         Case No. 11CAA110107


       For the reasons stated in our accompanying Opinion, Appellant's conviction

entered by the Delaware County Court of Common Pleas is affirmed.        Costs to

Appellant.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ Patricia A. Delaney _________________
                                        HON. PATRICIA A. DELANEY


                                        s/ Julie A. Edwards___________________
                                        HON. JULIE A. EDWARDS
