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State v. Barstow

Court of Appeals of Ohio, Fourth District

December 30, 2003

STATE OF OHIO, Plaintiff-Appellee,
v.
STEPHEN D. BARSTOW, Defendant-Appellant.

COUNSEL FOR APPELLANT [1]: Drew Rolston

COUNSEL FOR APPELLEE: Larry E. Beal Hocking County Prosecuting Attorney, David A. Sams Assistant Prosecuting Attorney

DECISION AND JUDGMENT ENTRY

David T. Evans Presiding Judge

{¶1} Defendant-Appellant Stephen D. Barstow appeals from his conviction by the Hocking County Court of Common Pleas on several counts of burglary, receiving stolen property, theft by deception, grand theft, complicity to arson, and breaking and entering. Appellant argues that the trial court erred by accepting stipulations without specifically addressing appellant pursuant to Crim.R. 11 and when it informed the jury of those stipulations, that he received the ineffective assistance of counsel, and that the trial court erred when it denied his motion for severance of the counts in the indictment. We disagree and affirm the judgment of the trial court.

I. Proceedings Below

{¶2} On April 23, 2002, the Hocking County Grand Jury returned a seventeen-count indictment alleging that Defendant-Appellant Stephen D. Barstow committed criminal acts on the following dates.

{¶3} On or about February 19, 2002: COUNT I, burglary, a second-degree felony in violation of R.C. 2911.12(A)(2); and COUNT II, theft, a fifth-degree felony in violation of R.C. 2913.71.

{¶4} On or about March 30, 2002: COUNT III, burglary, a fourth-degree felony in violation of R.C. 2911.12(A)(4); and COUNT IV, breaking and entering, a fifth-degree felony in violation of R.C. 2911.13(A).

{¶5} On or about March 24, 2002: COUNT V, tampering with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1); COUNT VI, complicity to arson, a fourth-degree felony in violation of R.C. 2923.03(A)(2) and 2909.03(A)(1); COUNT VII, receiving stolen property, a fifth-degree felony in violation of R.C. 2913.51(A); and COUNT VIII, theft by deception, a fifth-degree felony in violation of R.C. 2913.02(A)(3).

{¶6} On or about March 26, 2002: COUNT IX, complicity to burglary, a fourth-degree felony in violation of R.C. 2923.03(A)(2) and 2911.12(A)(4); and COUNTS X and XI, complicity to grand theft, fourth-degree felonies in violation of 2923.03(A)(2) and 2913.02(A)(1)(B)(4).

{¶7} On or about April 10, 2002: COUNT XII, burglary, a second-degree felony in violation of R.C. 2911.12(A)(2); COUNTS XIII and XIV, grand theft, fourth-degree felonies in violation of R.C. 2913.02(A)(1)(B)(4); COUNT XV, breaking and entering, a fifth-degree felony in violation of R.C. 2911.13(A); COUNT XVI, burglary, a third-degree felony in violation of R.C. 2911.12(A)(3); and COUNT XVII, breaking and entering, a fifth-degree felony in violation of R.C. 2911.13(A).

{¶8} On June 10, 2002, appellant filed a motion to sever the seventeen counts in such a way that would result in eight separate criminal trials. The trial court, instructing that the state was charging a series of theft and theft related offenses over a period of less than two months, overruled appellant's motion. In the court's judgment, it found that appellant would not be prejudiced so long as the jury was properly instructed.

{¶9} On June 24, 2002, the case proceeded to trial. Following the court's opening remarks and instructions to the jury, the court recessed. At that point, outside of the jury's presence, counsel for appellant asked for time to make stipulations. Appellant and his counsel stipulated to the facts as alleged in six counts in the indictment. The following colloquy took place in regard to those stipulations:

{¶10} "THE COURT: It is my understanding you are going to stipulate to five of these charges.

{¶11} "[Prosecuting Attorney] MR. BEAL: Your Honor, we are going to stipulate to Counts VII and VIII and we had agreed to - it was XII, XIII, XIV, XV and XVI that we had agreed to stipulate to, but XII was the F-3 so if that one is off the table then I guess it would be stipulating to XIII, XIV, XV and XVI.

{¶12} "THE COURT: All right. So there are six [counts], VII, VIII, XIII, XIV, XV, and XVI.

{¶13} "[Defense counsel] MS. NANGLE: VII, VIII, XIII, XIV, XV, and XVI.

{¶14} "THE COURT: That is a stipulation. Is that correct, Mr. Barstow, you are going to admit to all ...


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