[Cite as State v. Hughes, 2013-Ohio-1550.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                   No. 98667 and 98668



                                      STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                   JAMES E. HUGHES
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                             Case Nos. CR-560001 and CR-560002

        BEFORE: Kilbane, J., S. Gallagher, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                     April 18, 2013
ATTORNEY FOR APPELLANT

Michael Heffernan
75 Public Square
Suite 700
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Brad S. Meyer
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} This appeal is a companion case to State v. Hughes, 8th Dist. No. 98666,

2013-Ohio-1037.

      {¶2} In this consolidated appeal, defendant-appellant, James Hughes (“Hughes”),

appeals his convictions in two separate cases. For the reasons that follow, we affirm.

      {¶3} In Case No. CR-560001, Hughes was charged with breaking and entering,

vandalism, theft, and possessing criminal tools.   These charges named Agez and Stagez

childcare center in Bedford, Ohio as the victim. In Case No. CR-560002, Hughes was

indicted with the same charges for breaking and entering into a Dunkin’ Donuts in

Bedford, Ohio.

      {¶4} In May 2012, both cases proceeded to trial. Prior to the start of the trial,

defense counsel objected to the joinder of both cases for trial.   The trial court denied

defense counsel’s motion, and both cases proceeded to trial before the jury.         The

following evidence was adduced at trial.

      {¶5} Leslie Coggins (“Coggins”) of Agez and Stagez childcare testified that on

April 11, 2011, she received a call from her security company that there was trouble with

the front door sensor.    The security company also called the Bedford police, who

responded to the daycare center.   When Coggins arrived at Agez and Stagez, the police

were already on the scene.   The glass front door was shattered and there was damage to

the front door lock.   The back door had pry marks on it near the security latch.        She
further testified that papers on the front counter were strewn everywhere.       The office

door was kicked in, file and desk draws were pulled out, and papers were tossed about the

room.

        {¶6} In addition, Coggins testified that Agez and Stagez is equipped with eight

security cameras, which captured the incident.     The video was played for the jury, and

Coggins testified about the events depicted on the video. According to Coggins, a man

wearing a hooded sweatshirt, later identified as Hughes, broke the glass on the front door

and entered the childcare center.   He then went to the front counter and threw papers

around before heading to the back of the building. While at the back of the building,

Hughes looked around, kicked open the office door, and went into her office.        He went

through her file cabinet and desk drawers, and then exited the building.

        {¶7} Montaz Alsayed (“Alsayed”) testified that he is the owner-manager of a

Dunkin’ Donuts in Bedford, Ohio. When he arrived to work on June 14, 2011, he found

his office door broken. He proceeded to the front of the store to find broken glass from

the drive-thru window, donuts on the floor, and the cash register drawers open. He

called 911 and waited for the police to arrive.   Alsayed testified that a total of $1,000 in

cash was taken from the registers and a change safe.

        {¶8} Alsayed further testified that the Dunkin’ Donuts is equipped with security

cameras, which captured the incident.      This video was also played for the jury, and

Alsayed testified about the events depicted on the video. According to Alsayed, a man,

later identified as Hughes, smashed through the drive-thru window with a sledge hammer.
 Hughes took money from two cash registers and a change safe under the counter.

Hughes was carrying a dark bag with him and was wearing a hooded sweatshirt.                 He

proceeded to the back, where the office is located.        He went into the office and then

continued out the back door. Before exiting, Hughes looked directly into the security

camera.

          {¶9} Officer Matthew Grams (“Grams”) of the Northfield Village Police

Department testified that he was on patrol on the night of August 13, 2011, when he

observed a vehicle leaving from a local business at a high rate of speed.           The vehicle

drove over the curb and headed westbound on Vincent Avenue, which is a dead-end

street.    Grams followed the vehicle and effectuated a traffic stop.        Grams approached

the vehicle, identified the driver as Hughes, and checked his identification.       Hughes was

driving with a suspended license, so Grams arrested him for driving under suspension.

Grams testified that Hughes was wearing a gray hooded sweatshirt, which he stated was

“abnormal for the time of year.”     The sweatshirt had two front pockets with a zipper, a

small tear in the front, and a tear in the back along the left shoulder.

          {¶10} Grams completed an inventory of Hughes’s vehicle.          Grams found a pair of

“Mechanix” gloves on the floor of the driver’s side, and a black bag on the front

passenger seat.    Grams testified that the bag contained a crowbar, sledge hammer, white

shirt, and broken glass.   Grams identified Hughes as the perpetrator at both the Agez and

Stagez childcare center and Dunkin’ Donuts break-ins from the surveillance videos.           He

further testified that the gray hooded sweatshirt in the videos appeared to have the same
tear in the back left shoulder as the gray hooded sweatshirt Hughes wore when he arrested

him.

       {¶11} Detective Buck Kidd (“Kidd”) of the Bedford Police Department testified

that he was assigned to the investigation of both incidents. He obtained the surveillance

videos from Coggins and Alsayed and sent out still photos of Hughes’s face to

surrounding cities in an attempt to identify Hughes. In December 2011, Kidd learned

from a Beachwood police detective that Hughes was the possible suspect.             Kidd

obtained Hughes’s driver’s license photo and compared it to the photos from both videos.

 He identified Hughes as the perpetrator in the Agez and Stagez video and the Dunkin’

Donuts video. Kidd further testified that Hughes appeared to be wearing the same

glasses in the Agez & Stagez video and in his Northfield Village Police Department

booking photo. Hughes also wore distinct gloves, which could be observed in the Agez

and Stagez video.    The videos captured Hughes using a crowbar to break in to both

places, which was similar to the one found in his car. Kidd testified that Hughes was

also captured on video with a gray hooded sweatshirt that had a distinctive tear over the

left shoulder, which appeared as the same sweatshirt worn by Hughes when he was

arrested by Grams.

       {¶12} At the conclusion of the State’s case, the trial court granted Hughes’s

motion to dismiss Count 3 (theft) in Case No. CR-560001, and in Case No. CR-560002,

the State dismissed Count 3 (vandalism).      In Case No. CR-560001, the jury found

Hughes guilty of breaking and entering (Count 1), vandalism (Count 2), and possessing
criminal tools (Count 4). In Case No. CR-560002, the jury found him guilty of breaking

and entering (Count 1), theft (Count 2), and possessing criminal tools (Count 4).

          {¶13} In June 2012, the trial court sentenced Hughes in Case No. CR-560001 to

ten months in prison on each count, to be served consecutively, for an aggregate of 30

months in prison. In Case No. CR-560002, the trial court sentenced him to ten months

in prison on each of Counts 1 and 4, to be served consecutively, and six months in jail on

Count 2, to be served concurrently to Counts 1 and 4, for an aggregate of 20 months in

prison.      The trial court ordered that the sentences in both cases be served consecutively,

for a total of 50 months in prison.

          {¶14} Hughes now appeals, raising the following three assignments of error for

review, which shall be discussed together where appropriate.

                               ASSIGNMENT OF ERROR ONE

          [Hughes’s] conviction was against the sufficiency of the evidence.




                              ASSIGNMENT OF ERROR TWO

          [Hughes’s] conviction was against the manifest weight of the evidence.

                             ASSIGNMENT OF ERROR THREE

          The trial court abused its discretion and denied [Hughes] the right to a fair
          trial by joining two separate cases, which taken together, prejudiced
          [Hughes] to such an extent that a fair trial was impossible.

                                  Sufficiency of the Evidence
       {¶15} In the first assignment of error, Hughes argues that the State failed to

present sufficient evidence to sustain his convictions. The Ohio Supreme Court in State

v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the

standard for sufficiency of the evidence as follows:

       Raising the question of whether the evidence is legally sufficient to support
       the jury verdict as a matter of law invokes a due process concern. State v.
       Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing
       such a challenge, “[t]he relevant inquiry is 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d
       492, paragraph two of the syllabus, following Jackson v. Virginia (1979),
       443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

       {¶16} Hughes argues there is insufficient evidence to sustain his convictions

because his identity was not proven beyond a reasonable doubt.     We disagree.

       {¶17} Both of these incidents were captured on video, which the jury had the

opportunity to view. Grams and Kidd watched these videos and in their testimony

identified Hughes as the perpetrator at both Agez and Stagez and Dunkin’ Donuts.

Furthermore, at the time of Hughes’s arrest, he was caught with what appeared to be the

same items used in the videos during both break-ins.     In the Agez and Stagez video, he

appeared to be wearing the same gloves and glasses, and carrying a crowbar that Grams

found after arresting Hughes.      Additionally, in the Dunkin’ Donuts video, Hughes

appears to be wearing the same gray hooded sweatshirt and carrying a black bag with the

crowbar and sledge hammer.      When viewing this evidence in a light most favorable to

the State, we find sufficient evidence identifying Hughes as the perpetrator.
       {¶18} Therefore, the first assignment of error is overruled.

                              Manifest Weight of the Evidence

       {¶19} In the second assignment of error, Hughes argues that his convictions are

against the manifest weight of the evidence.           With respect to a manifest weight

challenge, the Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

       [T]he reviewing court asks whose evidence is more persuasive — the
       state’s or the defendant’s? * * * “When a court of appeals reverses a
       judgment of a trial court on the basis that the verdict is against the weight of
       the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
       with the factfinder’s resolution of the conflicting testimony.” [Thompkins
       at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
       L.Ed.2d 652.
       {¶20} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

       {¶21} Hughes argues the jury “lost its way” because the witnesses failed to

identify him and the “evidence presented was similar in nature to some items found in

[his] care during a traffic stop.”

       {¶22} Here, both Grams and Kidd identified Hughes as the perpetrator at Agez and

Stagez and Dunkin’ Donuts. At the time of Hughes’s arrest, he was wearing glasses and
a gray hooded sweatshirt.    Grams found a pair of “Mechanix” gloves and a black bag

containing a crowbar and sledge hammer in Hughes’s car.      Grams and Kidd testified that

these items appear to be the same items he used during the break-ins.       Based on this

evidence, we cannot say the jury clearly “lost its way” and created such a manifest

miscarriage of justice that Hughes’s convictions must be reversed and a new trial ordered.

       {¶23} Therefore, the second assignment of error is overruled.



                                         Joinder

       {¶24} In the third assignment of error, Hughes argues the trial court abused its

discretion when it joined the trial of Cases CR-560001 and CR-560002. He claims the

jury was confused by the joinder, and the joinder caused an unfavorable impression as to

his character.

       {¶25} We initially note that while defense counsel objected to the joinder at the

beginning of trial, counsel did not renew his objection to the joinder at the close of the

State’s evidence or at the conclusion of all the evidence.   As a result, he has waived all

but plain error.   State v. Owens, 51 Ohio App.2d 132, 146, 366 N.E.2d 1367 (9th

Dist.1975); see also State v. Saade, 8th Dist. Nos. 80705 and 80706, 2002-Ohio-5564, ¶

13, discretionary appeal not allowed, 98 Ohio St.3d 1479, 2003-Ohio-974, 784 N.E.2d

711; State v. Hill, 8th Dist. No. 80582, 2002-Ohio-4585; State v. Fortson, 8th Dist. No.

78240, 2001 Ohio App. LEXIS 3404 (Aug. 2, 2001). Under Crim.R. 52(B), notice of

plain error is to be taken with the utmost caution, under exceptional circumstances, and
only to prevent a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus.     In order to find plain error under

Crim.R. 52(B), it must be determined that, but for the error, the outcome of the trial

clearly would have been otherwise. Id. at paragraph two of the syllabus.

      {¶26} Generally, the law favors joining multiple offenses in a single trial under

Crim.R. 8(A) if the offenses charged are of the same or similar character. Saade at ¶ 11,

citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990). However, if joinder

would prejudice a defendant, the trial court is required to order separate trials. Crim.R.

14. It is the defendant who bears the burden of demonstrating prejudice and that the trial

court abused its discretion in denying severance. Saade at ¶ 12, citing State v. Coley, 93

Ohio St.3d 253, 2001-Ohio 1340, 754 N.E.2d 1129. A defendant’s claim of prejudice is

negated when:    (1) evidence of the other crimes would have been admissible as “other

acts” evidence under Evid.R. 404(B); or (2) the evidence of each crime joined at trial is

simple and direct. Lott at 163.

      {¶27} In the instant case, joinder was proper because the offenses are of similar

nature and based on the same course of conduct.     The evidence in each case was simple

and direct, and there is no indication in the record that the jury confused the evidence as

to the different counts or that it was influenced by the cumulative effect of the joinder.

Both crimes were committed two months apart in the city of Bedford, both crimes were

investigated by the same detective, and most importantly, both incidents were recorded on

video surveillance cameras.   The jury was able to observe Hughes on both videos taken
from Agez and Stagez and Dunkin’ Donuts. In both videos, Hughes is identifiable and

appears to be wearing the same torn gray hooded sweatshirt.    Thus, it cannot be said that

Hughes was prejudiced by the joinder.



      {¶28} Accordingly, the third assignment of error is overruled.

      {¶29} Judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
