[Cite as State v. Shellhouse, 2014-Ohio-1823.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :   JUDGES:
                                                 :
                                                 :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                        :   Hon. John W. Wise, J.
                                                 :   Hon. Patricia A. Delaney, J.
-vs-                                             :
                                                 :   Case No. 13CA59
                                                 :
KEITH SHELLHOUSE                                 :
                                                 :
                                                 :
       Defendant-Appellant                       :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Richland County Court
                                                     of Common Pleas Case Nos. 2012 CR
                                                     552H & 2012 CR 233H



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              April 23, 2014




APPEARANCES:

For Plaintiff-Appellee:                              For Defendant-Appellant:

LINDA MAJESKA POWERS                                 WILLIAM C. FITHIAN, III
SPECIAL PROSECUTOR                                   111 N. Main St.
RICHLAND COUNTY                                      Mansfield, OH 44902
30 E. Broad St., 14th Floor
Columbus, OH 43215
Richland County, Case No.13CA59                                                        2



Delaney, J.

       {¶1} Appellant Keith Shellhouse appeals from the June 10, 2013 Sentencing

Entries of the Richland County Court of Common Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Appellant operated a classic car restoration business in Richland County,

Ohio. This case arose when appellant accepted a number of cars for restoration and

did little or none of the work but kept the owners’ money, car parts owners provided,

and in some cases, even the vehicles.

       {¶3} A number of witnesses testified they found advertisements for appellant’s

business through internet searches or in car magazines.         Customers provided their

vehicles to appellant along with substantial down payments and continued to make

installment payments. Inevitably it became clear appellant was not completing the work

on the vehicles; some were parked in fields with weeds growing through them. Despite

demands by customers to complete the work or return the vehicles, appellant did

neither.   Some customers took civil action against appellant and obtained default

judgments.

       {¶4} In one case, Kyle Margolan brought appellant his 1967 Ford Mustang for

restoration and appellant sold the vehicle without authorization to do so.      Appellee

presented evidence appellant sent notice to Margolan at a Michigan address in the

process of transferring title despite knowing Margolan lived in Florida.

       {¶5} Appellant was charged under two separate case numbers; the first case

addressed appellant’s aggregate failure to complete work on a number of vehicles and

his unauthorized sale of Margolan’s Mustang. The second case addressed falsification
Richland County, Case No.13CA59                                                      3


of reports connected with the theft of the Mustang. The two cases were consolidated for

trial.

         {¶6} In Case Number 12-CR-233, appellant was charged by indictment with

one count of theft pursuant to R.C. 2913.02(A)(2) in an amount greater than $150,000

but less than $750,000, a felony of the third degree; and one count of theft of a motor

vehicle pursuant to R.C. 2913.02(A)(1), a felony of the fourth degree.

         {¶7} In Case Number 12-CR-552, appellant was charged by indictment with

one count of falsification of report of motor vehicle pursuant to R.C. 2921.13(A)(9), a

felony of the fourth degree, and one count of tampering with records pursuant to R.C.

2913.42(A)(1), a felony of the third degree.

         {¶8} Appellant filed a motion to suppress and appellee responded with a

memorandum in opposition.        The trial court overruled the motion to suppress on

October 16, 2012.

         {¶9} Appellant entered pleas of not guilty and the case proceeded to trial by

jury. Appellant was found guilty as charged and was sentenced to an aggregate prison

term of 48 months.

         {¶10} Appellant appeals from the judgment entry of his convictions and

sentence.

         {¶11} Appellant raises three assignments of error:

                               ASSIGNMENTS OF ERROR

         {¶12} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO

CLARIFY ISSUES THAT WERE CONFUSING TO THE JURY. THE COURT WAS

AWARE OF THE COMPLEXITY OF THE CASE BUT FAILED TO GIVE A JURY
Richland County, Case No.13CA59                                                           4


INSTRUCTION EXPLAINING THE DIFFERENCE BETWEEN (A) CIVIL AND

CRIMINAL LIABILITY, AND (B) THE BURDENS OF PROOF IN CIVIL AND CRIMINAL

CASES.”

       {¶13} “II. SENTENCING PROCEDURE WAS INADEQUATE AS A MATTER OF

LAW AS THE COURT FAILED TO TAKE THE FACTORS CONTAINED IN OHIO

REVISED CODE SECTION 2929.12 UNDER CONSIDERATION.”

       {¶14} “III. THE TRIAL COURT’S ADMISSION OF TESTIMONY BY WITNESS,

GARY     BISHOP,     THAT     APPELLANT      ASSAULTED        HIM   WAS     IRRELEVANT,

UNSUBSTANTIATED          BY    ANY     CHARGES        OR    POLICE      REPORTS,       AND

PREJUDICIAL TO APPELLANT.”

                                        ANALYSIS

                                             I.

       {¶15} In his first assignment of error, appellant argues the trial court erred in its

instructions to the jury because the trial court did not adequately explain the difference

between civil and criminal burdens of proof and civil and criminal liability. We disagree.

       {¶16} The trial court instructed the jury upon the difference in the burden of proof

in a civil case versus a criminal case during the testimony of one of the customers who

obtained a civil judgment against appellant. (T. 256-258). No objection was made to

the instruction. At the conclusion of the case, the trial court instructed the jury upon the

standard of proof necessary to establish reasonable doubt in a criminal case. (T.1088-

1089). No objection was made to the jury instruction.

       {¶17} Crim.R. 30(A) states: “On appeal, a party may not assign as error the

giving or the failure to give any instructions unless the party objects before the jury
Richland County, Case No.13CA59                                                               5


retires to consider its verdict, stating specifically the matter objected to and the grounds

of the objection.” We therefore review this issue for plain error.

       {¶18} Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” The

rule places several limitations on a reviewing court’s determination to correct an error

despite the absence of timely objection at trial: (1) “there must be an error, i.e., a

deviation from a legal rule,” (2) “the error must be plain,” that is, an error that constitutes

“an ‘obvious’ defect in the trial proceedings,” and (3) the error must have affected

“substantial rights” such that “the trial court’s error must have affected the outcome of

the trial.” State v. Dunn, 5th Dist. Stark No. 2008-CA-00137, 2009-Ohio-1688, citing

State v. Morales, 10 Dist. Franklin Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶

19 (citation omitted).

       {¶19} The decision to correct a plain error is discretionary and should be made

“with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68,

759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus. The Ohio Supreme Court has noted “* * * an

erroneous jury instruction ‘does not constitute a plain error or defect under Crim.R.

52(B) unless, but for the error, the outcome of the trial clearly would have been

otherwise.” State v. Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d 452 (1983), citing

State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).

       {¶20} We have reviewed the record of this case and find the evidence of

appellant’s guilt to be substantial. We find the trial court’s instruction did not rise to level
Richland County, Case No.13CA59                                                             6


of plain error because the outcome of the trial would not have been otherwise absent

the instruction. See, State v. Broucker, 5th Dist. Stark No. 2007CA00315, 2008-Ohio-

2946, ¶ 38. Multiple witnesses testified to the same pattern of conduct by appellant: he

accepted their classic cars and their money, and failed to do the work, sometimes failing

to even return the cars.

       {¶21} Appellant’s first assignment of error is overruled.

                                                II.

       {¶22} Appellant withdrew his second assignment of error at oral argument. The

second assignment of error is therefore overruled.

                                               III.

       {¶23} In his third assignment of error, appellant argues testimony by a witness

regarding appellant’s alleged assaults required the trial court to grant a mistrial. We

disagree.

       {¶24} In the midst of voluminous nonresponsive narrative testimony, a witness

stated he eventually removed a car from appellant’s shop after appellant “had assaulted

[him] a couple of times.” Appellant objected and the objection was overruled. The

witness then testified, again in nonresponsive narrative testimony, appellant pushed him

off a snowmobile in Michigan during an excursion and police were called. No objection

was made. Upon cross examination, defense trial counsel then questioned the witness

about his problems with appellant during the trip to Michigan, inviting more

nonresponsive narrative testimony with the question “What was that about?” (T. 684).

During a recess, appellant moved for a mistrial and the trial court overruled the motion.
Richland County, Case No.13CA59                                                        7


      {¶25} Appellant now argues he is entitled to a new trial on the basis of the

evidence of the alleged assaults. In State v. Ahmed, 103 Ohio St.3d 27, 42, 2004-Ohio-

4190, 813 N.E.2d 637, the Ohio Supreme Court noted:

             The determination of whether to grant a mistrial is in the discretion

             of the trial court. State v. Glover (1988), 35 Ohio St.3d 18, 19, 517

             N.E.2d 900; State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059,

             796 N.E.2d 506, ¶ 42. “[T]he trial judge is in the best position to

             determine whether the situation in [the] courtroom warrants the

             declaration of a mistrial.” Glover, 35 Ohio St.3d at 19, 517 N.E.2d

             900; see, also, State v. Williams (1995), 73 Ohio St.3d 153, 167,

             652 N.E.2d 721. This court will not second-guess such a

             determination absent an abuse of discretion.

      {¶26} We have reviewed the record and the circumstances did not warrant a

mistrial. The facts of the snowmobiling incident in Michigan and the overall dispute

between the witness and appellant were uttered briefly and spontaneously on direct

examination; the incident was then explored in more detail on cross-examination by

defense trial counsel, presumably to establish bias in appellee’s investigation and

prosecution of appellant because the witness was an assistant county prosecutor.

Appellant now asserts summarily he is entitled to a new trial on the basis of this

evidence, but the doctrine of invited error holds that a litigant may not “take advantage

of an error which he himself invited or induced.” State v. Campbell, 90 Ohio St.3d 320,

324, 738 N.E.2d 1178 (2000), citing Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28

Ohio St.3d 20, 502 N.E.2d 590, paragraph one of the syllabus.
Richland County, Case No.13CA59                                                              8


       {¶27} We further find, in light of the exhaustive, voluminous evidence presented

at this trial, mention of an alleged assault and even repeated discussion of the

snowmobiling incident was not prejudicial to appellant in the context of the entire trial.

       {¶28} We find no abuse of discretion in the trial court’s decision not to grant a

mistrial. Appellant’s third assignment of error is overruled.

                                      CONCLUSION

       {¶29} Appellant’s three assignments of error are overruled and the judgment of

the Richland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Wise, J., concur.
