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State v. Schandel

December 4, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SHANE R. SCHANDEL, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Carroll County, Ohio Case No. 06CR4902.

The opinion of the court was delivered by: Donofrio, J.

OPINION

JUDGMENT: Affirmed in Part Reversed in Part and Remanded.

JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro.

{¶1} Defendant-appellant, Shane Schandel, appeals from a Carroll County Common Pleas Court judgment convicting him of theft, receiving stolen property, and trafficking in drugs, following a jury trial.

{¶2} This case involves two different incidents, one involving drugs sales and one involving a theft of copper wire.

{¶3} The first set of facts involves two drug sales occurring on September 20 and 22, 2005. According to confidential informant (CI) David Shattuck, on these occasions appellant sold him Vicodin pills. These drug sales were set up and monitored by Carroll County Sheriff's Deputy Robert Watson.

{¶4} The second set of facts involves the theft of copper wire from a barn located on what is known as the "Dawson farm" in May 2006. For some time, appellant and several others lived on the Dawson farm in various trailers. The Dawson farm contains a large barn. Several of the trailer residents admitted to stealing aluminum roofing from the barn and selling it to a scrap metal yard. These residents then implicated appellant in the theft of the copper wire from the barn.

{¶5} Based on these two sets of events, on July 5, 2006, a Carroll County grand jury indicted appellant on one count of breaking and entering, a fifth-degree felony in violation of R.C. 2911.13(A); one count of theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1); one count of receiving stolen property, a fifth-degree felony in violation of R.C. 2913.51(A); and two counts of trafficking in drugs, fourth-degree felonies in violation of R.C. 2925.03(A)(1).

{¶6} The matter proceeded to a jury trial where the jury found appellant guilty of theft, receiving stolen property, and one count of trafficking in drugs. The jury found appellant not guilty of breaking and entering and the other count of trafficking in drugs. The trial court subsequently sentenced appellant to 12 months for theft and ordered that appellant, jointly and severally with his co-defendants who were convicted of stealing the aluminum roofing, pay restitution in the amount of $5,030. The court then found that for sentencing purposes, receiving stolen property merged with theft. Additionally, the court sentenced appellant to 18 months for trafficking in drugs. Finally, the court ordered that appellant serve his sentences consecutively for a total of 30 months.

{¶7} Appellant failed to file a timely notice of appeal. However, this court granted him leave to file a delayed appeal, which he did.

{¶8} Appellant raises seven assignments of error, the first of which states:

{¶9} "THE TRIAL COURT ERRED, WHEN IT DENIED SCHANDEL'S MOTION TO SEVER THE CHARGES CONTAINED IN THE INDICTMENT, BECAUSE THE ALLEGED OFFENSES AROSE FROM TWO COMPLETELY UNRELATED INCIDENTS. THIS ERROR DEPRIVED SCHANDEL OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION."

{¶10} As set out above, appellant's indictment included charges relating to two separate situations. Appellant argues that because the two situations were completely unrelated, the trial court should have granted his motion for separate trials. He first contends that the theft offenses and the drug offenses should not have even been charged in the same indictment because nothing linked them together. Second, appellant contends that he was prejudiced by the joinder of the theft offenses and drug offenses. He points out that the facts relating to the theft offenses would not have been admissible at a trial on the drug offenses and vice versa had he had separate trials. He points out that the two sets of offenses involved different times, different victims, different witnesses, and different evidence. Additionally, appellant argues that the evidence of each set of crimes was not simple and distinct and there was not overwhelming evidence of guilt as to any of the charges. Therefore, appellant argues that it was likely that the jury improperly accumulated the evidence of the separate offenses to find him guilty of some of the offenses charged.

{¶11} An appellate court will only reverse a trial court's denial of severance if the trial court abused its discretion. State v. Skatzes, 104 Ohio St.3d 195, 819 N.E.2d 215, 2004-Ohio-6391, at ¶33. Abuse of discretion connotes more than an error of law; it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.

{¶12} Crim.R. 8(A) provides that two or more offenses may be charged in the same indictment if the offenses are (1) of the same or similar character, or (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or (4) are part of a course of criminal conduct. "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.'" State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293, quoting State v. Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288.

{¶13} In this case, the theft offenses should not have been joined in the same indictment as the drug offenses. None of the four alternatives set out in Crim.R. 8(A) exist here.

{¶14} In discussing the joinder statute, the Ohio Supreme has held: "When a statute states specific areas of proper joinder, a joinder that fails to fall within such areas is improper." State v. Atkinson (1965), 4 Ohio St.2d 19, 22, 211 N.E.2d 665.

{¶15} In this case, the theft offenses were not of the same or similar character as the drug offenses. While in some cases theft of property may be directly related to drug offenses, such was not the case here. There was no testimony whatsoever that the theft of the copper wire from the Dawson farm had anything to do with drugs or drug sales. Additionally, the theft offenses and the drug offenses were not based on the same act or transaction. The drug offenses were alleged to have occurred in September 2005. The theft offenses were alleged to have occurred eight months later. These two sets of events were completely separate from each other. No evidence was presented that appellant did anything in the eight-month period between the two sets of crimes that would link them together. This also demonstrates that the two sets of offenses were not connected together nor did they constitute parts of a common scheme or plan. The two sets of offenses did not involve the same witnesses, victims, or evidence. Furthermore, there was no evidence that the two sets of crimes were part of a course of criminal conduct. Again, absolutely no evidence connected the drug offenses to the theft offenses.

{¶16} The only commonality shared by the drug offenses and the theft offenses was that appellant was alleged to have committed them both. Other than that, the two sets of crimes were unrelated.

{¶17} The Second District has held that where the offenses charged against the defendant involved different crimes at different times at different locations on different dates and the offenses involved different victims, different witnesses, different investigating officers, and completely different evidence, the offenses should not have been joined for trial. State v. Clements (1994), 98 Ohio App.3d 797, 799, 649 N.E.2d 912.

{¶18} The remedy for the misjoinder of offenses in an indictment is not the dismissal of the indictment. R.C. 2941.28(B). Instead, the court is to sever the indictment into separate indictments. R.C. 2941.28. Thus, in this case the trial court should have severed the indictment into two separate indictments: one involving the drug offenses and one involving the theft offenses.

{¶19} Since the theft offenses should not have been joined with the drug offenses, we must determine whether this error prejudiced appellant and caused him to receive an unfair trial.

{¶20} "When a defendant claims that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct." State v. Schaim (1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661. When simple and distinct evidence exists, an accused is not prejudiced by the joinder of multiple offenses in a single trial, regardless of whether the evidence is admissible as other-acts evidence. State v. Coley (2001), 93 Ohio St.3d 253, 260, 754 N.E.2d 1129.

{¶21} In this case, evidence of the alleged drug sales would not have been admissible at a trial on the theft offenses and vice versa. As noted above, the two sets of offenses involved different types of offenses, different victims, different witnesses, and occurred at different times.

{¶22} But the evidence offered as to the two sets of offenses was simple and distinct. To prove the drug offenses, the state presented three witnesses, Deputy Watson, Sheriff Dale Williams, and David Shattuck, the CI. Deputy Watson testified that he set up a controlled Vicodin buy with Shattuck and monitored the sale. He further testified that the pills Shattuck purchased from appellant were hydrocodone, the generic name for Vicodin. Sheriff Williams testified that he accompanied Deputy Watson in monitoring the controlled buy. And Shattuck testified that he purchased Vicodin on September 20, and 22, 2005, from appellant at appellant's residence and that he did so while under surveillance by Deputy Watson.

{¶23} To prove the theft offenses, the state offered testimony from Sheriff Williams, Robert German, Sean Nolan, Nicole Bryant, Jeremy Mullins, Raymond Johnson, and Kerry Teeter.

{¶24} Sheriff Williams testified that Sky Bank, which now owns the Dawson farm, reported a theft of property from the farm. He stated that he observed the property and spoke with those involved in stealing the aluminum roofing. This led Sheriff Williams to a second investigation into the theft of the copper wire. German testified that he went with appellant to the scrap yard where they sold copper wire. Nolan testified that he saw appellant in the barn cutting wires. Bryant testified that she saw appellant burning the plastic off of copper wire so that he could take it to the scrap yard. Mullins testified that he too saw appellant burning copper wire. Johnson testified that appellant told him that the copper wire was there for the taking. Finally, Teeter testified as to Sky Bank's ownership interest in the Dawson farm.

{¶25} Only one witness, Sheriff Williams, overlapped the two sets of offenses. And it seems to have merely been a coincidence that he was involved in both. He was not conducting any type of on-going investigation into appellant. The rest of the evidence was distinct as it clearly applied to only one or the other set of offenses. Furthermore, the evidence as to the drug offenses was very simple and straightforward to understand. And the evidence as to the theft offenses, while a bit more complicated, was still not overly complex so as to confuse the jury.

{¶26} Moreover, the jury was able to separate the evidence as to each of the five charged offenses. The jury found appellant guilty of one drug trafficking charge but acquitted him of the other. And while the jury found appellant guilty of theft and receiving stolen property, it found him not guilty of breaking and entering. The jury's verdicts demonstrate that they were able to consider the evidence independently as it pertained to each individual charge and did not lump the charges together.

{¶27} Since the evidence as to each set of crimes was simple and distinct and because the jury demonstrated that they were able to consider the evidence separately as to each individual count of the indictment, appellant was not prejudiced by the court's failure to separate the drug offenses from the theft offenses. Accordingly, appellant's first assignment of error is without merit.

{¶28} Appellant's second assignment of error states:

{¶29} "THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT OF CONVICTION IN THE ABSENCE OF SUFFICIENT EVIDENCE TO ESTABLISH SCHANDEL'S GUILT OF THE OFFENSE OF THEFT, AND WHEN SCHANDEL'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN CONTRAVENTION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION."

{¶30} Here appellant's argument is twofold. First, he argues that the state failed to present sufficient evidence to convict him of theft and receiving stolen property. Specifically, he asserts that the state failed to present evidence that he acted knowingly or with the purpose to deprive the owner of the property. He contends that the evidence established that at the time of the theft offenses, it was believed that the farm property from which copper wire had been removed was abandoned. Appellant points out that the bank possessed only a collateral interest in the farm property and not an ownership interest. Additionally, appellant asserts that the state failed to present evidence that the value of the property taken exceeded $500, as was required to elevate the offense to a fifth-degree felony. He asserts that none of the various witnesses who testified that the copper wire's value exceeded $500 were qualified to render such an opinion.

{¶31} Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the jury verdict. State v. Smith (1997), 80 Ohio St.3d 89, 113, 684 N.E.2d 668. In essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the 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. Smith, 80 Ohio St.3d at 113.

{¶32} The jury convicted appellant of theft in violation of R.C. 2913.02(A)(1) and receiving stolen property in violation of R.C. 2913.51(A).

{¶33} R.C. 2913.02(A)(1) provides:

{¶34} "(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:

{¶35} "(1) Without the consent of the owner or person authorized to give consent."

{¶36} R.C. 2913.51(A) provides: "No person shall receive, retain, or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense."

{¶37} The evidence revealed that appellant took copper wire from the barn on the Dawson farm. Nolan testified that he actually saw appellant in the rafters of the barn cutting wires. (Vol. II, Tr. 9). Bryant testified that she saw appellant in the barn burning the plastic off of copper wires. (Vol. II, Tr. 25-26). German stated that he went with appellant to the scrap yard shortly after the theft was alleged to have occurred and that appellant sold copper wire while there. (Vol. I, Tr. 226-28).

{¶38} Appellant contends that the state failed to prove that he acted with the purpose to deprive the owner of the copper wire as was required. The Sky Bank representative, Kerry Teeter, testified that at the time the wire was taken from the barn, the Dawson farm was in foreclosure and Sky Bank owned a collateral interest in the property. (Vol. II, Tr. 72-73, 81). However, simply because Sky Bank held only a collateral interest in the Dawson farm at the time the wire was stolen, does not mean that just anyone could remove property from the farm. Furthermore, the other residents of the Dawson farm who were convicted of stealing the barn's aluminum roofing testified that they knew that they were involved in a theft when they took the roofing. (Vol. II, Tr. 9, 32, 43). Construed in the light most favorable to the prosecution, this evidence was sufficient to demonstrate that appellant acted with the purpose to deprive the owner of the copper wire.

{¶39} Theft is a misdemeanor when the value of the property stolen is less than $500. R.C. 2913.02(B)(2). If the value of the property is $500 or more and is less than $5,000, theft is a fifth-degree felony. R.C. 2913.02(B)(2).

{¶40} Appellant claims that the state failed to prove that the value of the stolen wire exceeded $500. But the evidence indicates otherwise. Sheriff Williams testified that he was familiar with the property taken from the barn and that he has been involved in many similar cases where materials are stolen and then sold to be recycled. (Vol. I, Tr. 201-202). He stated that he could not give an exact dollar figure, but that the wire that was taken from the barn was worth a lot of money, specifically more than $500. (Vol. I, Tr. 203). Additionally, Mullins testified as to the condition of the wire before it was removed from the barn. (Vol. II, Tr. 50). He too opined that the wire was worth more than $500. (Vol. II, Tr. 50). Finally, Johnson, who used to work in the barn and was extremely familiar with the wire before it was stolen, opined that the value of the wire exceeded $500. (Vol. II, Tr. 62-62).

{¶41} Appellant argues that these witnesses were not qualified to give an opinion to the wire's value. Generally, before a witness may give an opinion on the value of property, the witness must be qualified as an expert. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 605 N.E.2d 936, paragraph one of the syllabus. The determination of whether a witness is sufficiently acquainted with an object to give testimony about its value is within the discretion of the trial court. State v. Heap, 1st Dist. No. C-040007, 2004-Ohio-5850, at ¶23. The credibility of the witness's opinion then goes to its weight rather than its admissibility. Id.

{¶42} Here Sheriff Williams and Johnson were qualified to give their opinions on the wire's value. Sheriff Williams had worked on numerous similar cases where material was stolen and then sold to be recycled. Thus, he was likely familiar with the value of such items. And Johnson had worked on the Dawson farm in the barn and was highly familiar with it. Therefore, he too likely had a good idea of the wire's value. Mullins, however, did not give any testimony that indicated that he had a strong familiarity with the wire's value. Consequently, his testimony may have been unreliable. But given that Sheriff Williams and Johnson were likely qualified to render such opinions, sufficient evidence existed that the wire's value was more than $500.

{¶43} For these reasons the jury's guilty verdicts on the theft and receiving stolen property charges were supported by sufficient evidence.

{¶44} Second, appellant contends that all of his convictions were against the weight of the evidence. Appellant asserts that as to the drug offense, the CI's testimony was incredible because his girlfriend contradicted it. And as to the theft offenses, he contends that his convictions hinged on the testimony of three convicted thieves whose testimony was likewise incredible.

{¶45} In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, 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, 78 Ohio St.3d at 387. "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" Id. (Emphasis sic.) In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. Id. at 390.

{ΒΆ46} Still, determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St.2d ...


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