[Cite as State v. McAllister, 2016-Ohio-8262.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Patricia A. Delaney, J.
-vs-
                                                    Case No. 2016CA00110
JOHN L. MCALLISTER

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Alliance Municipal Court,
                                                 Case No. 2016CR00507


JUDGMENT:                                        Affirmed

DATE OF JUDGMENT ENTRY:                          December 19, 2016

APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

CAITLYN R. SCHNEIDER                             DEREK LOWRY
JENNIFER ARNOLD                                  Crawford, Lowry & Assoc.
MATTHEW KUHN                                     116 Cleveland Avenue NW
Law Director's Office                            Suite 800
470 East Market Street                           Canton, Ohio 44702-1732
Alliance, Ohio 44601
Stark County, Case No. 2016CA00110                                                        2

Hoffman, P.J.



        {¶1}   Defendant-appellant John Lawrence McAllister appeals his convictions

entered by the Alliance Municipal Court on one count of theft by deception, in violation of

R.C. 2913.02(A)(3); and one count of possessing criminal tools, in violation of R.C.

2923.24(A). Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   On March 4, 2016, Hailey Miku, an infant child, was found dead in her home.

Appellant is the estranged grandfather of Hailey Miku. On March 10, 2016, the child was

laid to rest at Forest Hills Cemetery. The funeral expenses and burial were paid for in full

through private donations. Appellant and his co-defendant, Lisa Dalesandro, collected

money donations in homemade tins for the alleged purpose of paying the funeral

expenses for Hailey Miku. Appellant is the estranged grandfather of the infant child.

        {¶3}   On March 25, 2016, Tamara Mackey, the aunt of Hailey Miku, learned of

Dalesandro’s actions via social media. Mackey had personal knowledge the funeral

expenses and burial site for Hailey Miku had been paid in full through a private donation

and a separate Go Fund Me account.

        {¶4}   On March 25, 2016, Mackey confronted Appellant and Dalesandro,

identifying them by name. She then followed them to the parking lot of a Marc’s store,

where she observed Dalesandro soliciting donations for the funeral expenses of Hailey

Miku.
Stark County, Case No. 2016CA00110                                                      3


      {¶5}   Tamara Mackey made contact with Officer Bartolet of the Alliance Police

Department to report Dalesandro’s conduct.1 Officer Bartolet proceeded to the Marc’s

store and observed Lisa Dalesandro holding coffee cans with the deceased child’s name,

asking for money for a headstone for the child. Officer Bartolet had been advised the

headstone and funeral expenses had been paid in full per his conversation with Tamara

Mackey. He then approached Dalesandro.

      {¶6}   Upon approach, Dalesandro informed Officer Bartolet she was working with

Appellant, her boyfriend, to solicit the funds. Bartolet testified he gathered information

Appellant was in a car in the parking lot, but he had departed.

      {¶7}   Officer Bartolet learned through his investigation Appellant and Dalesandro

solicited funds in person and through leaving cans at Munchy’s Bar and Drive-Thru.

      {¶8}   Kelly Andrews of Munchy’s Bar and Drive-Thru testified Dalesandro left two

homemade tins at Munchy’s for the purpose of soliciting funds for the funeral expenses

of Hailey Miku. On March 25, 2016, Appellant returned to collect the donated monies and

left the emptied cans at the bar for additional donations. Appellant also left his phone

number at the business in the event someone wanted to make a larger donation.

      {¶9}   Prior to leaving Munchy’s, Appellant solicited funds in person at the drive-

thru, approaching customers and telling them about his granddaughter and collecting

monies for the funeral/headstone.

      {¶10} On March 26, 2016, Appellant returned to Munchy’s Bar and Drive-Thru to

retrieve the funds. Andrews confronted Appellant about the investigation, and informed




1Tamara Mackey’s police report taken on March 25, 2016, did not mention Appellant or
his conduct.
Stark County, Case No. 2016CA00110                                                      4


Appellant he would need to collect the cans at the Alliance Police Department. Appellant

proceeded to leave the bar.

      {¶11} Appellant was charged with one count of theft, by deception, in violation of

R.C. 2913.02(A)(3); and one count of possessing criminal tools, in violation of R.C.

2923.24(A).

      {¶12} The matter proceeded to jury trial on May 5, 2016. Following the jury’s return

of a guilty verdict on both counts, the trial court conducted a sentencing hearing and

imposed a term of one hundred forty days in jail on the theft by deception count, and one

hundred eighty days on the possession of criminal tools count. The trial court ordered the

terms run consecutively.

      {¶13} Appellant appeals, assigning as error:

      {¶14} “I. THE TRIAL COURT ERRED BY IMPROPERLY ADMITTING HEARSAY

TESTIMONY.

      {¶15} “II. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.

      {¶16} “III. THE TRIAL COURT’S [sic] FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.

      {¶17} “IV. THE TRIAL COURT IMPROPERLY CONSIDERED APPELLANT’S

PRE-ARREST SILENCE IN SUPPORT OF MAXIMUM AND CONSECUTIVE

SENTENCES.”

                                               II.
Stark County, Case No. 2016CA00110                                                        5


       {¶18} We find it best to address Appellant’s second assignment of error first, as

our analysis and disposition of Appellant’s argument therein has bearing on the first

assigned error.

       {¶19} In the second assignment of error, Appellant asserts he was denied the

effective assistance of counsel at trial. Specifically, Appellant cites counsel’s failure to

object to alleged hearsay testimony, the failure to object to opinion evidence, and trial

counsel’s failure to pursue a motion in limine to exclude any testimony regarding

Appellant’s pending case in the Canton Municipal Court.

       {¶20} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158 (1955).

       {¶21} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶22} Even if a defendant shows counsel was incompetent, the defendant must

then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong,

the defendant must show that “there is a reasonable probability that, but for counsel's
Stark County, Case No. 2016CA00110                                                                         6

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. The weight of the evidence and determination of the credibility of the

witnesses lie with the trier of fact.

        {¶23} Initially, Appellant maintains his counsel was ineffective in failing to pursue

a motion in limine to exclude testimony relative to Appellant’s pending case in the Canton

Municipal Court. At trial, Officer Cook testified, during his investigation of the allegations,

he called Officer Bartolet as he had knowledge Officer Bartolet was investigating a similar

incident involving Dalesandro, wherein “they were in the Canton area trying to obtain

donations in the same way that [Officer Cook was] investigating.” Tr. at 124.

        {¶24} On cross-examination by Appellant’s counsel, Tamara Mackey testified as

to Dalesandro and Appellant “getting in trouble in Canton doing the same thing” as alleged

herein. Tr. at 162. Appellant’s counsel then inquired of Mackey whether she was assisting

the police in the Canton investigation, to which she stated she was not involved in the

investigation. Id. Mackey testified she had knowledge of the investigation. Counsel then

inquired whether the Canton allegations had been resolved, to which Mackey replied

there had been no resolution. Id.

        {¶25} The testimony concerning the Canton Municipal Court case established

there had not yet been a resolution of the allegations. Appellant’s guilt had not been

established. Tr. at 162. 2 Though the testimony may well have been prejudicial, we find it

does not rise to the level of creating a reasonable probability the outcome of the trial

would have been different had the testimony been excluded.



2While not specifically so instructed regarding the pending charge in Canton Municipal Court, the jurors
were instructed regarding the presumption of innocence in this case and would likely understand such
presumption of innocence would apply to the Canton Municipal Court case.
Stark County, Case No. 2016CA00110                                                                   7


       {¶26} Appellant also argues his trial counsel was ineffective in failing to object to

hearsay testimony. First, Appellant cites the unauthenticated letter from the funeral home

testified to by Tamara Mackey. Mackey testified at trial she had personal knowledge the

funeral expenses were paid for and no remaining balance was due. The State introduced

Exhibit E, a letter from Forest Hill Cemetery to Justina Longwell stating, “In regard to baby

Hailey Miku’s mausoleum entombment at Forest Hill cemetery, there are currently no

charges due, the goods and services were donated.” Appellant asserts the letter was

hearsay.

    {¶27}      While we agree the letter was hearsay, we note the letter was cumulative

to the testimony of Mackey herself. As such, we cannot find a reasonable probability

exists the outcome of the trial would have been different had Appellant’s counsel objected

to the introduction of the letter and the letter been excluded.3

       {¶28} Appellant next cites the testimony of Officer Bartolet regarding a statement

made by Lisa Dalesandro that Appellant was in the car at the Marc’s store on the date of

the incident. Appellant asserts such was inadmissible hearsay testimony. Officer Bartolet

testified at trial, he learned through his investigation, through Dalesandro and Mackey,

Appellant had driven Dalesandro to the Marc’s parking lot, but after the arrest of

Dalesandro, the car and Appellant could not be located.

       {¶29} Tamera Mackey testified prior to making contact with Dalesandro in the

Marc’s parking lot, she approached the car and identified Appellant and Lisa Dalesandro

by name as the occupants of the vehicle. She testified she followed Appellant and

Dalesandro into the parking lot, personally observing and videotaping Dalesandro


3 Furthermore, had an objection been made and sustained, the State may have been able to introduce
the evidence later through the testimony of a representative from the funeral home.
Stark County, Case No. 2016CA00110                                                      8


soliciting funds for the funeral expenses of Hailey Miku. Appellant was not present in the

parking lot, and she did not include his name in the police report as she was focused on

the activities of Dalesandro. Tr. at 158.

       {¶30} Officer Cook of the Alliance Police Department testified he never confirmed

Appellant’s presence in the parking lot, nor did he confirm Appellant had left when the

police arrived. We find no reasonable probability exists the outcome of the trial would

have been different but for the admission of this hearsay testimony.

       {¶31} Appellant next cites the testimony of Officer Cook regarding statements

made by Kelly Andrews, an employee of Munchy’s Bar and Drive Thru, concerning

Appellant bringing in the cans and soliciting funds at Munchy’s for the funeral expenses

of Hailey Miku.

       {¶32} Kelly Andrew’s herself testified as to Appellant’s conduct in soliciting the

funds for the funeral expenses. She was subject to cross-examination. Because her

statement to Officer Cook was cumulative to her trial testimony, we again find Appellant

cannot meet the prejudice prong of Strickland.

       {¶33} Appellant also cites Officer Cook’s testimony the actions of Appellant

constituted deceit. At trial, Appellant’s counsel inquired of Officer Cook,

       Q.     Okay. Um so with regard to your complaint, you filed the complaints

       against Mr. McAllister, right?

       A. Yes I did.

       Q.   Okay. And you alleged that he knowingly by deception collected

       donations, right?

       A. Yes.
Stark County, Case No. 2016CA00110                                                           9


       Q. Okay. Who did you talk to that he deceived?

       A. Ms. Andrews was the person that made the complaint to me.

       Q. Did Ms. An--, -- did he deceive Ms. Andrews?

       A. You’ll have to ask her.

       Q. During the investigation, you didn’t reveal that he deceived Ms. Andrews,

       did you?

       A. I believe Ms. Andrews did state to me that she did make donations prior

       to knowing the circumstances with the cans.

       Q. Did she say to you that Mr. McAllister spoke to her and deceived her?

       A. No.

       ***

       Q. Okay. You also state in your complaint for theft that he deceived—which

       today you’re—you don’t’ have any evidence of that – “that the funeral

       expenses were already taken care of and that the defendant was keeping

       money for personal use,” right?

       A. Yes.

Tr. at 127-128.

       {¶34} On re-direct, the State inquired of Officer Cook whether he would consider

Appellant’s actions deceit based upon his experience. Officer Cook answered, yes. Tr. at

135.

       {¶35} While the officer’s opinion as to the ultimate issue is properly left for the jury

to decide, we find Appellant’s counsel opened the door when he inquired of Officer Cook

whether the actions of Appellant amounted to deceit. Officer Cook deferred to the opinion
Stark County, Case No. 2016CA00110                                                        10


of Kelly Andrews at that time. Tr. at 128-130. We find counsel’s cross-examination of

Officer Cook amounts to trial strategy. Further, Kelly Andrews testified she did donate

monies based upon Appellant’s statements to her and to other customers of Munchy’s

Bar and Drive-Thru. Even if the failure to object to Officer’s Cook’s testimony on redirect-

examination fell below the wide range of reasonable professional assistance, we do not

find a reasonable probability exists the outcome of the trial would have been different had

Officer Cook’s opinion regarding Appellant’s deceit been excluded.

       {¶36} Appellant’s second assignment of error is overruled.

                                                 I.

       {¶37} In the first assigned error, Appellant maintains the trial court erred in

permitting hearsay and opinion testimony at trial.

       {¶38} Appellant did not object to the testimony at trial; therefore, we review

Appellant’s argument under a plain error analysis.

       {¶39} In order to prevail under a plain error analysis, Appellant bears the burden

of demonstrating the outcome clearly would have been different but for the error. State v.

Long, 53 Ohio St.2d 91 (1978). Notice of plain error “is to be taken with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. at paragraph three of the syllabus.

       {¶40} As set forth in our analysis and disposition of Appellant’s second

assignment of error, we do not find a reasonable probability exists the outcome of the trial

would have been different had the challenged testimony been excluded. Accordingly, we

do not find any of the alleged errors rises to the more stringent level of plain error.

       {¶41} The first assignment of error is overruled.
Stark County, Case No. 2016CA00110                                                        11


                                                 III.

       {¶42} In the third assignment of error, Appellant maintains his convictions for theft

by deceit and use of criminal tools were against the manifest weight and sufficiency of the

evidence. We disagree.

       {¶43} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶44} An appellate court's function when reviewing the sufficiency of the evidence

is to 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,

paragraph two of the syllabus (1991).

       {¶45} Appellant was convicted of theft by deception, in violation of R.C.

2913.02(A)(3), which reads, in pertinent part,

              (A) No person, with purpose to deprive the owner of property or

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

       services in any of the following ways:

              ***

              (3) By deception;
Stark County, Case No. 2016CA00110                                                    12


      {¶46} Appellant was further convicted of possession of criminal tools, in violation

of R.C. 2923.24(A), which reads, in pertinent part,



             (A) No person shall possess or have under the person's control any

      substance, device, instrument, or article, with purpose to use it criminally.

             (B) Each of the following constitutes prima-facie evidence of criminal

      purpose:

             (1) Possession or control of any dangerous ordnance, or the

      materials or parts for making dangerous ordnance, in the absence of

      circumstances indicating the dangerous ordnance, materials, or parts are

      intended for legitimate use;

             (2) Possession or control of any substance, device, instrument, or

      article designed or specially adapted for criminal use;

             (3) Possession or control of any substance, device, instrument, or

      article commonly used for criminal purposes, under circumstances

      indicating the item is intended for criminal use.



      {¶47} As set forth in our analysis and disposition of Appellant’s first and second

assigned errors, testimony at trial established Tamara Mackey testified the funeral

expenses had been paid in full through a private donation and a separate Go Fund Me

account. The State introduced a letter [Exhibit E] to Justina Longwell stating the

mausoleum entombment at Forest Hill Cemetery was paid in full, and no charges were

due as the goods and services were donated.
Stark County, Case No. 2016CA00110                                                      13


      {¶48} Dalesandro indicated to police Appellant’s involvement in driving her to the

parking lot. Further, Tamera Mackey testified at trial she observed Appellant and

Dalesandro drive to Marc’s, and subsequently observed Dalesandro soliciting funds for

the funeral expenses and headstone for Hailey Miku.

      {¶49} Kelly Andrews testified at trial Appellant visited Munchy’s Bar and Drive-

Thru on March 25, 2016. At the time, Appellant collected monies donated for the funeral

expenses and headstone of Hailey Miku, which donations were given in cans left at

Munchy’s by Lisa Dalesandro. While at Munchy’s, she observed Appellant soliciting funds

in person from patrons visiting the drive-thru, stating the monies were being collected for

the funeral expenses and headstone of his granddaughter. Appellant used the cans to

collect the donations, and then left the emptied cans for further donations. Appellant left

his name and phone number at the business in the event of larger donations.

       {¶50} We find Appellant’s convictions for theft by deceit and possession of

criminal tools were not against the manifest weight nor based on insufficient evidence.

       {¶51} The third assignment of error is overruled.

                                               IV.

       {¶52} In his fourth assigned error, Appellant maintains the trial court erred in

imposing maximum, consecutive sentences at the May 5, 2016 sentencing.

       {¶53} The trial court sentenced Appellant herein to 144 days on the theft by

deception charge, and 180 days on the use of criminal tools charge, to run consecutively.

       {¶54} The trial court stated on the record,
Stark County, Case No. 2016CA00110                                                         14


            THE COURT: You can be seated. The difficulty the Court has with

     accepting that explanation, Mr. McAllister, is that the evidence before the

     Court includes two separate instances where police on one occasion at

     Marc’s parking lot were on the scene arriving and it’s alleged that you were

     identified and you left instead of dealing with the police.          The second

     incident is the one at Munchy’s whereupon the notified by the bartender that

     if you wanted the cans back you have to call the police. You left in a state

     of agitation. Those two facts belie your statement that what you were doing

     was for an honest and truthful purpose. In each of those cases, had your

     interest, had your goals been absolutely forward and honest, you simply

     would have said, “this is my intent and purpose” to anybody who

     approached Ms. Dalesandro or who approached you at the time. Even after

     knowing that Ms. Dalesando [sic] had been arrested, you then went to

     Munchy’s to secure the funds from those cans, continued to address or seek

     or solicit additional monies and never once wanted to say, “Hey, look, if

     there is a problem, I know Lisa got arrested. I’ll run right down to the police

     department and make this right.” At no point in time have I heard you

     explain to the Court in your elocution, “Judge, I set up a fund in her name.

     it’s at the local bank. Here’s where the money is. I’m prepared to turn this

     over to the family for inscription.” At no point in time has the Court heard

     anything like that. I find, in fact, that with you, it’s just a matter of, I’ll say

     whatever is necessary to get me out of trouble.

            ***
Stark County, Case No. 2016CA00110                                                    15


            THE COURT: Sentence of the Court on the charge of theft. Two

     hundred and fifty dollars plus court costs. One hundred and eighty days in

     jail. I will impose one hundred and forty-four days upon you giving credit for

     thirty-six you’ve already served. With regard to the charge of possession of

     criminal tools. Two hundred fifty dollars plus court costs. One hundred and

     eighty days in jail. I will impose all one hundred and eighty days. That will

     be served consecutive to the charge of theft. I find the defendant’s record,

     I find the defendant’s lack of remorse, I find the nature of the actions

     complained about in the complaint proven by this Court absolutely justifies

     this. This Court has had the opportunity to watch you as you present

     yourself. Your demeanor, the way you appear, the way you address the

     Court, the way you speak about this, your absolute complete lack of any

     feeling in this regard requires the Court to impose this as consecutive

     sentences. Mr. McAllister, I don’t think you care. I really don’t think you

     care. And you present yourself as a guy that doesn’t care about this. As

     long as you got some money out of it, that was good enough for you. And

     that is the impression you’ve given this Court. The fact that you have not

     ever once offered in any way, shape or form any support as to “if somebody

     was hurt by my actions I will give them their money back. Here’s the

     account where it was set up.” You’ve never, ever made that offer. You

     never, ever made the offer to explain to the police department how this

     really was just one big giant mistake.       I find your actions absolutely

     reprehensible.   That will be the sentence of the Court.         Consecutive
Stark County, Case No. 2016CA00110                                                        16


       sentences     Madam      Prosecutor,    the   Court    concurs    with    your

       recommendation.




Tr. at 209-210; 211-212.



       {¶55} The trial court did not consider Appellant’s pre-arrest silence with respect to

the finding of guilt or innocence. We find it was not improper to consider the same for

purposes of sentencing. The trial court considered Appellant’s conduct throughout the

police investigation and during trial as a demonstration of lack of remorse. Appellant has

an extensive criminal record, including thirteen convictions for theft, as noted by the State

at sentencing. We find the trial court did not error in sentencing Appellant herein.

       {¶56} The fourth assignment of error is overruled.

       {¶57} Appellant’s convictions and sentence in the Alliance Municipal Court are

affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur
