[Cite as State v. Jolliff, 2011-Ohio-1460.]




                        IN THE COURT OF APPEALS OF OHIO
                            THIRD APPELLATE DISTRICT
                                WYANDOT COUNTY




STATE OF OHIO,

         PLAINTIFF-APPELLEE,                                CASE NO. 16-10-10

         v.

JEREMY J. JOLLIFF,                                          OPINION

         DEFENDANT-APPELLANT.




                 Appeal from Wyandot County Common Pleas Court
                            Trial Court No. 10-CR-0025

                                        Judgment Affirmed

                              Date of Decision: March 28, 2011




APPEARANCES:

         Scott B. Johnson for Appellant

         Jonathan K. Miller for Appellee
Case No. 16-10-10



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Jeremy J. Jolliff (“Jolliff”) brings this appeal

from the judgment of the Court of Common Pleas of Wyandot County denying his

motion to sever the counts of the indictment. For the reasons set forth below, the

judgment is affirmed.

       {¶2} On April 18, 2010, Jolliff stole a 2002 Chevy Tahoe by telling a drug

dealer to whom he owed money for the purchase of cocaine that he could take it as

collateral. The dealer intended to rent out the vehicle until the debt was paid. On

April 25, 2010, Jolliff entered a Subway restaurant in Carey, Ohio. He made an

employee give him all the paper currency and left the restaurant with $315.00.

       {¶3} On May 19, 2010, the Wyandot County Grand Jury indicted Jolliff on

one count of robbery, a violation of R.C. 2911.02(A)(3), for the robbery at the

Subway and one count of grand theft of a motor vehicle, a violation of R.C.

2913.02(A)(1), for the theft of the truck. Jolliff entered pleas of not guilty to both

counts on May 20, 2010. On August 13, 2010, Jolliff filed a motion for leave to

file a motion to sever the charges for the purposes of trial. The State filed its

response to the motion to sever on August 18, 2010. On August 24, 2010, the trial

court granted Jolliff leave to file the motion to sever and then overruled the




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motion.1 The case went to trial on August 23 and 24, 2010. The jury found Jolliff

guilty of petty theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first

degree and a lesser included offense of the robbery charge for which Jolliff was

indicted. The jury also found Jolliff guilty of grand theft of a motor vehicle in

violation of R.C. 2913.02(A)(1), a felony of the fourth degree. On September 27,

2010, a sentencing hearing was held. The trial court sentenced Jolliff to six

months in jail for the petty theft, seventeen months in prison for the grand theft of

a motor vehicle with these two sentences to run concurrently and one year in

prison to run consecutive to the other sentences because Jolliff was on post release

control at the time of the offenses. Jolliff appeals from these judgments and raises

the following assignment of error.

        The trial court erred in not granting [Jolliff’s] motion to sever
        the counts of the indictment.

        {¶4} The sole assignment of error claims that the trial court erred in

denying Jolliff’s motion to sever the counts of the indictment.

        Two or more offenses may be charged in the same indictment * *
        * in a separate count for each offense if the offenses charged,
        whether felonies or misdemeanors or both, are of the same or
        similar character, or are based on the same act or transaction, or
        are based on two or more acts or transactions connected
        together, or constituting parts of a common scheme or plan, or
        are part of a course of criminal conduct.


1
   This court notes that the trial court did not officially deny the motion to sever the charges until the
second day of trial.

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Case No. 16-10-10



Crim.R. 8(A). If a defendant feels that the joinder prejudices him or her, he or she

may file a motion to sever. Crim.R. 14. The Ohio Supreme Court has held that

for a defendant to prevail on a claim that the trial court erred by denying a motion

to sever, he or she must show that 1) his or her rights were prejudiced, 2) he or she

provided the trial court with sufficient information to weigh the considerations

favoring joinder against the right to a fair trial, and 3) that the trial court abused

its discretion in refusing to separate the charges for trial. State v. Torres (1981),

66 Ohio St.2d 340, 421 N.E.2d 1288.

       {¶5} Here, Jolliff claims that the charges should have been severed because

the nature of the charges is not similar and allowing the jury on the grand theft of a

motor vehicle charge to hear how the defendant frightened a young woman during

the Subway theft was inflammatory. A review of the indictment indicates that

both charges were theft charges and were thus similar in nature. The record

reveals that the store theft occurred because Jolliff needed money to pay for drugs.

The theft of the truck occurred because Jolliff needed collateral for the money he

owed to his drug dealer for the purchase of drugs. Thus, the reason behind the

thefts was to obtain money for the purchase of drugs.

       {¶6} Jolliff’s theory that the nature of the Subway theft would be

inflammatory is not supported by the record either. Jolliff was indicted on a third

degree felony charge of robbery. The indictment specified that Jolliff either used

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Case No. 16-10-10



force or threatened to use force during the robbery. The jury found him not guilty

of that and only convicted him of the lesser included charge of petty theft, a

misdemeanor of the first degree. Clearly the jury did not believe that Jolliff either

used force or threatened to use force and thus was not inflamed by hearing the

testimony of the clerk working during the Subway theft as Jolliff alleges

happened.

       {¶7} Additionally, this court notes that Jolliff’s claim that he was

prejudiced by the jury hearing that he committed multiple thefts is not supported

by the record. Jolliff argues that the evidence for the grand theft was not as strong

as that for the Subway theft. Although there were no photographs of him stealing

the truck as there were in the Subway theft, the State presented into evidence a

taped phone conversation made by Jolliff.

       Jolliff: They want their money, they’re not * * *

       Female Voice: Money for what?

       Jolliff: For drugs. They want it and they’re not * * *

       Female Voice: How much? But you told me, you told me 700
       dollars total.

       Jolliff: Total. Plus I sold them that hot truck. That truck was
       hot.

       Female Voice: You sold them a truck?

       Jolliff: As collateral. They went over and they * * *

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Case No. 16-10-10




      Female Voice: What truck?

      Jolliff: Messmer’s.

Ex. 17. The State also presented a taped interview between William Latham, the

investigator for the Wyandot County Prosecutor’s Office, and Jolliff.

      Jolliff: Uhm. Santanas wanted some collateral. Until then, I
      told them well, I said I’d give you the title to my truck, but I
      don’t have that right now. And he said well he needed some
      collateral until I could pay money on my bill.

      Latham: Okay.

      Jolliff: I couldn’t do nothing more til, either getted (sic) leverage
      or something, and I said well, that’s when I thought about the
      vehicle and I said well, the only other thing we own is a 2001
      Chevy Tahoe. And I said, I got the title, I said, it’s not in my
      name yet; I said it’s still in my uncle’s, I said but it’s mine. And
      I said, I’ll take you to go get it.

      And we drove over there. And he told me if I was playing, he
      was going to fucking shoot me. And they both had a gun. And
      the other dude I didn’t know, he’s just some big dark-skinned
      dude.

      Latham: When was this?

      Jolliff: That truck’s been gone * * * what’s today, Monday?

      Latham: Monday.

      Jolliff: It’s been gone eight days. Last Sunday.

      Latham: So last Sunday, Santanas, this other guy and you went
      to * * *


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Case No. 16-10-10



       Jolliff: They took me over there and I told them the key was
       under the, what do you call them, the little carpet that you throw
       down, and I told him the keys was (sic) underneath there and he
       asked me, that’s when he acted funny and he said if you got this
       and got the keys, then why ain’t you been driving it over here? I
       said, cause it’s almost out of gas. I said, I ain’t got no money. I
       can’t even buy no stuff. So how am I supposed to do it? And I
       took it and pulled around to the fuel pumps there at work and
       filled it up for him and Santanas just drove it.

       ***

       Latham: And this vehicle belongs to?

       Jolliff: John Messmer.

Ex. 16(A). Given this evidence of Jolliff’s own statements, there was more than

sufficient evidence from which a jury could have concluded Jolliff was

responsible for the theft of the vehicle. Jolliff’s argument as to the “weakness” of

the State’s case is contradicted by the record. Since Jolliff has not shown any

prejudice resulting from the joinder of the charges, the trial court did not err in

overruling his motion to sever. The assignment of error is overruled.

       {¶8} The judgment of the Court of Common Pleas of Wyandot County is

affirmed.

                                                               Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr



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