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State v. Troche

Court of Appeals of Ohio, Fifth District

July 15, 2013

STATE OF OHIO Plaintiff-Appellee
v.
GEORGE J. TROCHE Defendant-Appellant

Criminal appeal from the Richland County Court of Common Pleas, Case No. 2012-CR-202

For Plaintiff-Appellee JOHN J. MAYER JOHN NIEFT

For Defendant-Appellant RANDALL FRY

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant George Troche ("Troche") appeals from the August 12, 2012 Judgment Entry of the Richland County Court of Common Pleas convicting and sentencing him after a jury trial on one count of Burglary in violation of R.C. 2911, 12(A)(3), a felony of the third degree; and one count of Theft of Drugs in violation of R.C. 2913.02(A)(i), a felony of the fourth degree

Facts and Procedural History

{¶2} Money, medications, liquor, jewelry, and purses were stolen during a break-in at the residence of Richard Minor on November 7, 2011 at 1 p.m. Minor lived at 65 Penn Avenue, in Mansfield, Ohio.

{¶3} Tina Wischhusen, who lived across the street, observed two stocky men of mixed race walking down Penn Avenue. One had a yellow shirt and appeared to be her neighbor, Jared Williams; the other, stockier man was in a red shirt and had a backpack.

{¶4} Both men walked around the residence and then went up onto the porch. The man in the yellow shirt then backed down onto the steps of the porch as the man in the red shirt smashed in the front window and opened the door. The man in the yellow shirt then ran off down the street. Approximately five minutes later, the man in the red shirt emerged from the back of the residence. He was still carrying the backpack, but it appeared to be much heavier. The man in the red shirt struggled to carry the backpack as he ran away.

{¶5} Tina's neighbor, Jared Williams, testified that he was the man in the yellow shirt. Jared was walking with Troche from a local convenience store down Penn Avenue. Jared testified that he and Troche were walking around Minor's residence as a shortcut back from the store. Troche was wearing a red shirt and carrying a backpack. Troche and Jared walked onto Minor's front porch. Jared unsuccessfully attempted to contact his cousin, who lived in the adjoined apartment. After this, Jared saw Troche put on gloves and smash the window in the door of Minor's residence. Troche had the gloves in his back pants pocket. Jared backed off onto the steps and then ran away when he saw Troche break the glass. The police caught Jared a short time later and while in custody, he gave the police a statement. Two to three weeks after the break-in, Jared received a message from Troche on Facebook stating "R.I.P."

{¶6} Richard Minor testified to the damage to his residence and his stolen items. Shortly before trial, Troche called Minor on his home phone two nights in a row and threatened him. Troche told Minor that he should not testify and that he would kill Minor when he saw him.

{¶7} Troche testified in his own defense. He denied being at the scene of the burglary.

{¶8} Troche was indicted for Burglary in violation of R.C. 2911, 12(A)(3), a felony of the third degree and Theft of Drugs in violation of R.C. 2913.02(A)(i), a felony of the fourth degree. The jury found Troche guilty of burglary and theft. Troche was sentenced to an aggregate sentence of three years' incarceration.

Assignments of Error

{¶9} Troche raises four assignments of error,

{¶10} "I. THE DEFENDANT-APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT IN THE UNITED STATES CONSTITUTION TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL FAILED TO FILE A PROPER NOTICE OF ALIBI. THEREBY PROHIBITING THE DEFENDANT-APPELLANT FROM SETTING FORTH A VALID DEFENSE.

{¶11} "II. THE DEFENDANT-APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT IN THE UNITED STATES CONSTITUTION AS A RESULT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PLAINTIFF-APPELLEES CROSS-EXAMINATION OF THE DEFENDANT-APPELLANT CONCERNING HIS TESTIMONY AS TO WHERE HE WAS AND WHO HE WAS WITH WHEN THE BURGLARY AND THEFT OCCURRED.

{¶12} "III. THE VERDICT OF GUILTY AGAINST THE DEFENDANT-APPELLANT FOR COMMITTING THE CRIMES OF BURGLARY AND THEFT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

{¶13} "IV. THE TRIAL COURT COMMITTED ABUSE OF DISCRETION TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY EXCLUDING ALIBI EVIDENCE WHEN NO OBJECTION TO SAID EVIDENCE WAS MADE."

I & II

{¶14} Because we find the issues raised in Troche's first and second assignments of error are closely related, for ease of discussion we shall address the assignments of error together.

{¶15} In his first assignment of error, Troche argues that his trial counsel was ineffective for failing to file a timely notice of alibi. In his second assignment of error, Troche contends that his trial counsel was ineffective in failing to object to the cross-examination of him regarding his alibi.

{¶16} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry in whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

{¶17} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley, 42 Ohio St.3d at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id.

{¶18} In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. Prejudice warranting reversal must be such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694. A court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would "reasonably likely been different" absent the errors. Strickland, 466 U.S. 695, 696. A reasonable ...


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