[Cite as State v. Sandercock, 2018-Ohio-2448.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                   :    OPINION

                 Plaintiff-Appellee,             :
                                                      CASE NO. 2017-A-0061
        - vs -                                   :

DALE THOMAS SANDERCOCK,                          :

                 Defendant-Appellant.            :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016
CR 00656.

Judgment: Reversed and vacated.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street,
Jefferson, OH 44047 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Dale Thomas Sandercock, appeals from the judgment of the

Ashtabula County Court of Common Pleas, after a trial by jury, convicting him of one

count of failure to appear, in violation of R.C. 2937.99(A), (B), a felony of the fourth

degree. We reverse and vacate appellant’s conviction.

        {¶2}     The following testimony was adduced at trial:   Mr. Sandercock was

originally charged, in case number 2016 CR 426, with one count of felonious assault, a
felony of the second degree. Counsel stipulated appellant was released on a personal

recognizance bond, and the case involved a felony charge.             Attorney Joseph

Humpolick, an assistant public defender who retired shortly before the underlying trial,

was Mr. Sandercock’s attorney of record in the 2016 case. Attorney Humpolick testified

he met with Mr. Sandercock at his office in Ashtabula on August 24, 2016. He further

testified he provided Mr. Sandercock with a document, which he signed, outlining future

hearing dates, including an October 14, 2016 pretrial conference. Attorney Humpolick

also provided Mr. Sandercock with other documents relating to discovery in the matter.

       {¶3}   On October 13, 2016, a pretrial was held and Mr. Sandercock did not

attend the hearing. Attorney Humpolick subsequently sent Mr. Sandercock a letter to

notify him that he missed the hearing and advised his client to turn himself in to

authorities. As a result of appellant’s absence at the October hearing, he was indicted

on one count of failure to appear.

       {¶4}   The state rested following Attorney Humpolick’s testimony and Defense

counsel moved for acquittal, pursuant to Crim.R. 29. Defense counsel argued the state

failed to identify Mr. Sandercock during its case-in-chief; counsel maintained there was

no evidence presented to actually tie the Dale Sandercock on trial to the crime charged.

Counsel further argued the state failed to present sufficient evidence that Mr.

Sandercock acted recklessly in failing to appear.   The trial court overruled the motion

without a rationale.

       {¶5}   The defense’s evidence included testimony of Rebecca Sandercock, Mr.

Sandercock’s daughter-in-law, who testified she and her husband live in Northfield, in

Summit County, Ohio. She stated Mr. Sandercock moved into their home in August




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2016.    Rebecca drove Mr. Sandercock to his August 24, 2016 appointment with

Attorney Humpolick and he returned with a packet of papers after the meeting.

Rebecca testified Mr. Sandercock conveyed what he and Attorney Humpolick

discussed, including future court dates.       According to Rebecca, Mr. Sandercock

indicated the first hearing might be rescheduled and his attorney would contact him if

the date did not change. She testified Mr. Sandercock noted a November 21 hearing

and a December 20 hearing on his calendar and represented the case was important to

him.

        {¶6}   On October 31, 2017, Rebecca retrieved the mail and gave Mr.

Sandercock a letter from Attorney Humpolick that stated he had missed a court date

and a warrant had been issued for his arrest. Mr. Sandercock’s son, Rick Sandercock,

testified he drove his father to the jail early the next morning. Mr. Sandercock turned

himself in and Sergeant Donald Dietrich, the Assistant Jail Administrator at the

Ashtabula County Sheriff’s Department, testified Attorney Humpolick’s letter was part of

Mr. Sandercock’s property when he arrived.

        {¶7}   Mr. Sandercock testified he has serious lung and heart conditions and he

is on a variety of medications. In August 2016, he had recently moved in with his son

and daughter-in-law and noted he had not unpacked most of his belongings. He

acknowledged meeting with Attorney Humpolick in August 2016 for “quite some time”

and received a “stack of papers in an envelope.”    He further recognized the gravity of

failing to attend any of the scheduled hearings. And, he testified, his absence from the

October hearing was not due to heedless indifference, but that he was simply “sloppy

about keeping track.” Upon receiving Attorney Humpolick’s letter in late October, he




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testified he called the attorney’s office and they advised him to “turn yourself in,” which

he did.

       {¶8}   Upon conclusion of its deliberations, the jury found Mr. Sandercock guilty

of the offense. Counsel filed a written motion for a pre-sentence investigation report,

which the court denied. Mr. Sandercock was subsequently sentenced to a 12-month

term of imprisonment. He now appeals and assigns three errors for this court’s review.

His first assignment of error provides:

       {¶9}   “The trial court erred to the prejudice of the defendant by failing to grant

his Rule 29 motion for acquittal; furthermore, the jury’s verdict was against the manifest

weight of the evidence.”

       {¶10} We shall begin by addressing appellant’s challenge to the sufficiency of

the evidence upon which his conviction was premised. A “sufficiency” argument raises a

question of law as to whether the prosecution offered some evidence concerning each

element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033,

2011-Ohio-4171, ¶25. “[T]he proper inquiry is, after viewing the evidence most favorably

to the prosecution, whether the jury could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-

Ohio-6062 ¶9 (11th Dist.).

       {¶11} Mr. Sandercock first argues the prosecutor failed to establish his identity.

He points out neither the state’s sole witness, Attorney Humpolick, directly identified

him, nor did any exhibit identify him as the defendant in this case. He further asserts

there was insufficient circumstantial evidence in the state’s case-in-chief to connect him




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as the individual who engaged in the acts or omissions which led to the underlying

conviction.

      {¶12} The state has a duty to prove, beyond a reasonable doubt, each element

of the crime set forth in the indictment. See e.g. State v. Tate, 140 Ohio St.3d 442,

2014-Ohio-3667, ¶15. Additionally, the state must also demonstrate the identity of the

defendant as the perpetrator beyond a reasonable doubt. State v. Cook, 65 Ohio St.3d

516, 526 (1992). Ohio courts have “long held that circumstantial evidence is sufficient

to sustain a conviction if that evidence would convince the average mind of the

defendant's guilt beyond a reasonable doubt,” as circumstantial evidence is accorded

equal weight and given the same deference as direct evidence. State v. McKnight, 107

Ohio St.3d 101, 2005-Ohio-6046, ¶75.      Moreover, Ohio courts have specifically held

that the identity of a defendant as the perpetrator of the crime in question may be

proven by indirect evidence. See e.g. State v. Baxla, 4th Dist. Highland No. 656, 1988

WL 65644, *3 (June 3, 1988). For instance, witness testimony referring to the person on

trial as “the defendant,” in conjunction with the state establishing that “the person

committing the offense was arrested and charged and the defendant appeared at trial in

response to the charge,” Crim.R. 29(A) motion for judgment of acquittal.” Id. See also

State v. Brown, 12th Dist. Warren No. CA 2006-10-120, 2007-Ohio-5787, ¶31 (state

trooper testified he had “opportunity to speak with the defendant after she was

apprehended * * *. Emphasis added.) State v. Lucas, 5th Dist. Morgan No. CAO4007,

2005-Ohio-3468, ¶20 (officer questioned by defense counsel asked what he “saw when

[he was] leading my client * * * out in handcuffs. (Emphasis added.)




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      {¶13} Courts have held, however, “merely establishing that the defendant’s

name is the same as that of the alleged offender is insufficient to prove identity.”

(Emphasis added.) State v. Bailey, 2d Dist. Montgomery No. 27177, 2017-Ohio-2679,

¶18, citing State v. Gray, 7th Dist. Mahoning No. 09 MA 33, 2010-Ohio-2530, ¶7, citing

State v. Marcum, 7th Dist. Columbiana No. 03 CO 36, 2004-Ohio-3036, ¶23; see also

State v. Hatfield, 10th Dist. Franklin No. 04AP-402, 2004-Ohio-6450, ¶16; State v.

O’Neil, 107 Ohio App.3d 557, 561 (6th Dist.1995).

      {¶14} At trial, there was sufficient testimony to establish that a male with the

name Dale Sandercock was the person who was represented by Attorney Humpolick;

that Dale Sandercock was advised of the various hearing dates for the 2016 felonious

assault case; that Dale Sandercock failed to appear at the October hearing; that Dale

Sandercock was later advised, via letter sent by Attorney Humpolick, that his failure

resulted in a warrant for his arrest; and that Dale Sandercock subsequently turned

himself in to the Ashtabula County Jail.

      {¶15} The first issue raised by defense counsel’s motion for acquittal was

whether there was any evidence that the Dale Sandercock, who was indicted and

standing trial, was the Dale Sandercock who was discussed during the state’s case-in-

chief. Defense counsel emphasized the prosecutor made no attempt at identification

during the state’s case-in-chief. The record supports counsel’s contention.

      {¶16} The state’s only witness, Attorney Humpolick, was never asked to identify

the man standing trial as his former client.       Moreover, neither Attorney Humpolick, the

prosecutor, nor defense counsel on cross-examination identified the man standing trial

as the perpetrator of the offense or “the defendant.” The state presented circumstantial




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evidence that the person who did not appear at the October hearing was named Dale

Sandercock (by virtue of the case caption and the fact that a prosecution was taking

place). Apart from having the same name, however, there was no direct or

circumstantial evidence that the man standing trial was that person.

       {¶17} The state does not specifically dispute the foregoing points. Instead, it

points out that “prior to voir dire, the trial court stated, ‘Dale Sandercock is the defendant

in this case.’” The court asked appellant to stand, and he did.           The state further

emphasizes that Attorney Humpolick met with and represented “a Dale Sandercock.”

Attorney Humpolick confirmed he did and discussed the interactions and contact he had

with “Dale Sandercock.”       Finally, albeit strangely, the state emphasizes appellant

identified himself, during the defense’s presentation of evidence, as Dale Sandercock.

       {¶18} With respect to the first point, the court’s pre-voir dire, pre-trial

identification was not evidence presented to the trier of fact at trial; and, in any event, it

is the state’s burden, not the court’s, to prove identity. See Tate, supra. Furthermore,

Attorney Humpolick’s testimony that he represented “a Dale Sandercock” only

underscores the problem identified by defense counsel in her motion for acquittal. “a”

Dale Sandercock does not identify appellant as “the” Dale Sandercock on trial. Finally,

a sufficiency argument, or a Crim.R. 29 motion concerns the state’s burden of

production and tests whether the prosecution presented adequate evidence for the case

to go to the jury. See e.g. Windle, supra. Accordingly, appellant’s identification during

the defense’s presentation of evidence was entirely irrelevant to the sufficiency inquiry.

And, perhaps more importantly, such testimony would not have been on record had

defense counsel’s motion been granted.




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       {¶19} The Second Appellate District was recently faced with a similar issue in

Bailey, supra. In that case, Lavetta Bailey was charged and found guilty of assault after

a trial by jury. The state’s evidence established two emergency medical personnel

responded to a fight at a bar where they found, inter alia, a belligerent, yet visibly injured

woman. They were able to transport her into their ambulance and, upon arrival at the

hospital, the woman struck one of the individuals in the head with a closed fist. At trial,

neither the emergency personnel nor a responding officer could identify Bailey as the

perpetrator of the assault. After the state rested, Bailey moved for acquittal because no

one had identified her as the person who assaulted the victim. The trial court overruled

the motion, stating:

       {¶20} “I concede this is a very, very close call by the Court. Very close.
             And if it were simply the identity, the name Lavetta Bailey, the
             motion for directed verdict would be sustained. But it’s more than
             simply the name. It is the name. That is a factor, and it’s the name
             Lavetta Bailey. But it’s the cross examination of these various
             witnesses in which the questions by defense counsel assume as a
             given that it was the defendant who was the individual with whom
             these officers encountered. And so that or that reason that motion
             for directed verdict is overruled.” Id. at ¶13.

       {¶21} The Second District reversed the trial court’s decision and found the state

failed to prove Bailey’s identity. The court emphasized that no witness at trial identified

Lavetta Bailey, the woman on trial, as the assailant. The court further noted that

“[e]vidence was presented that ‘identifiers’ such as a Social Security number and date

of birth were obtained either by the ambulance personnel, Officer Roesser, or hospital

personnel, but the testimony conflicted about who had obtained such information, and

no specific evidence was admitted as to what Social Security number or date of birth

was collected and entered into Roesser’s computer at the hospital.” Id at ¶22. Finally,




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the appellate court underscored that the trial court’s reliance on defense counsel’s

questions on cross-examination was misplaced.          The court observed that simply

because defense counsel referred to “Ms. Bailey” and used the word “she” in questions

was inconsequential because it was unclear whether the witnesses construed his

questions as referring to the woman on trial or the woman who committed the offense.

Id. at ¶25. And, in any event, as the court pointed out, questions of counsel are not

“evidence.” Id. at ¶26.

      {¶22} Similar to Bailey, appellant was not identified as the perpetrator of the

charged crime. And the exhibits submitted by the state fail to provide this necessary

connection.   The exhibits simply detail information relating to previous proceedings

involving one, Dale Sandercock; again, however, this does not establish the requisite

nexus between the man on trial and the individual who allegedly failed to appear. The

only commonality is the name Dale Sandercock, which, as emphasized above, is

insufficient to prove identity. Bailey, supra; Gray, supra (“There needs to be more than

mere identity of names, such as an in court identification of the defendant as the person

who committed the crime.”); Marcum, supra (“Establishing that the defendant's name is

the same as the name of the person whom witnesses testified committed the crime is

not sufficient evidence of identity.”); Hatfield, supra (“Establishing the defendant’s name

to be the same as that of the person who witnesses testified committed the crime is

generally insufficient evidence of identity.”);    O’Neil, supra (“Applying the Jenks

[sufficiency] standard of viewing the evidence most favorably toward the state, the most

any reasonable person might infer is that the O'Neil in this case is probably the same




                                            9
O'Neil in the 1984 case. But ‘probably’ does not reach proof beyond a reasonable doubt

* * *”).

           {¶23} Here, in order to conclude the Dale Sandercock standing trial was the

Dale Sandercock referred to in the state’s case-in-chief, required the jury to assume

identity. “When an inference, which forms the basis of a conviction, is drawn solely from

another inference and that inference is not supported by any additional facts or

inferences drawn from other established facts, the conviction is improper.” State v.

Payne, 11th Dist. Ashtabula No. 2014-A-0001, 2014-Ohio-4304], ¶ 23. See also State v.

Armstrong, 11th Dist. Portage No. 2015-P-0075, 2016-Ohio-7841, ¶23; State v.

Maynard, 10th Dist. Franklin No. 11AP-697, 2012-Ohio-2946, ¶27. Based upon the

evidence presented by the state, reasonable minds could not have concluded the Dale

Sandercock, who was on trial for failure to appear, was the perpetrator of the offense at

issue.       The state therefore failed to produce sufficient evidence to sustain Mr.

Sandercock’s conviction. In this regard, the trial court erred when it overruled defense

counsel’s Crim.R. 29 motion.

           {¶24} Given the foregoing disposition, we need not address Mr. Sandercock’s

manifest-weight argument.

           {¶25} Appellant’s first assignment of error has merit.

           {¶26} Appellant’s remaining assignments of error provide:

           {¶27} “[2.] The trial court erred when it compelled appellant’s prior counsel to

testify regarding appellant’s failure to appear and allowed the jury to consider as written

evidence communications between counsel and the appellant




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      {¶28} “[3.] The trial court erred when it sentenced appellant to a prison term on a

fourth degree felony without any indicated prior criminal history and without a

presentence report which was requested by counsel.”

      {¶29} Because we vacate Mr. Sandercock’s conviction, pursuant to our

disposition of his first assignment of error, his remaining assignments of error are

overruled as moot.

      {¶30} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas is reversed and vacated.



THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.




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