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State v. Young

Court of Appeals of Ohio, Fourth District

July 26, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
GLENN F. YOUNG, JR., Defendant-Appellant.

David A. Sams, West Jefferson, Ohio, for Appellant.

James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland Presiding Judge

{¶1} Glenn F. Young, Jr., appeals his conviction in the Washington County Court of Common Pleas after a jury found him guilty of one count of theft of a dangerous drug, a violation of R.C. 2913.02(A)(1)(2)(3) and (B) (1)(6). On appeal, Young contends (1) the trial court erred by admitting hearsay; (2) the trial court erred in admitting Appellant's statements in the absence of a corpus delicti; (3) the judgment is based upon insufficient evidence and is otherwise against the manifest weight of the evidence; and, (4) Appellant was denied effective assistance of counsel. Upon review, we find the trial court's admission of Carrie Roush's alleged hearsay statement was not error. Here there was sufficient evidence to establish the corpus delicti of the crime in this matter and, as such, the trial court did not err in subsequently admitting Appellant's tape-recorded confession. We also find the jury's verdict was based on sufficient evidence and was also not against the manifest weight of the evidence. Finally, we find Appellant was not denied effective assistance of counsel. Accordingly, we overrule all assignments of error and affirm the judgment of the trial court.

FACTS

{¶2} Glenn F. Young, Jr., was indicted for theft of a dangerous drug, a violation of R.C. 2913.02(A)(1))(2)(3) and (B)(1)(6) by the Washington County Grand Jury on April 29, 2011. The indictment specifically alleged theft of 25 pills containing Hydrocodone and approximately 10 Cyclobenzaprine pills. Appellant's mother, Clara M. Young, was the alleged victim of this crime. Appellant proceeded to a jury trial on January 18, 2012.

{¶3} At trial, the State presented testimony from Carrie Roush, Appellant's sister. She testified her mother lived in an apartment in Beverly, Ohio in early 2011. Ms. Roush testified her mother had just returned to her apartment after being away for a month after knee replacement surgery in late January 2011. Ms. Young had been in a nursing home three weeks. Ms. Roush assisted her mother in obtaining her medication, a pain medication, a muscle relaxant, and her regular medications, from the B&W Pharmacy on or about February 18, 2011. Ms. Young then stayed with her daughter a week after obtaining the prescriptions on the 18th. Ms. Roush testified during that time, her mother resisted taking her Vicodin as much as possible. At the time Ms. Young returned to her apartment in the latter part of February 2011, she still had nearly the entire prescription of pain medication, a 60- day supply. On the Sunday or Monday following Ms. Young's return to her apartment, Carrie Roush received a phone call from her mother that "some of her pills were missing." Ms. Roush testified she then went to her mother's apartment, counted her pills, and noticed approximately half of the pills were missing. She advised contacting the police. Carrie Roush further testified to her knowledge, the only people present at her mother's apartment during the relevant time period, (the Friday her mother returned to her apartment until the Sunday or Monday Ms. Roush assisted her mother in counting the pills), were her brother, Appellant Glenn F. Young, Jr., and his ex-wife Aimee Young.

{¶4} On cross-examination, Carrie Roush testified she did not actually see Appellant take the pills. Ms. Roush also testified her mother had anxiety attacks when her children were in a fight or her grandchildren were "back-talking." Ms. Roush acknowledged her mother's memory was questionable, and there had been other instances of her making accusations against Appellant. Ms. Roush testified her brother's personality was to "fight back" against an accusation. On redirect, Ms. Roush testified the missing pills were never found. [1]

{¶5} Clara M. Young did not testify at trial. The State played a brief recorded telephone conversation between Appellant and his mother dated March 3, 2011. Prior to introducing the recorded statement, defense counsel objected on the basis that (1) there had not been enough evidence established at trial to establish a corpus delicti, and, (2) Ms. Young's statement was testimonial hearsay which a limiting instruction would not cure. The trial court ruled there was sufficient evidence to establish a corpus delicti. The trial court also ruled the recording would be admissible with a limiting instruction that Ms. Young's statements were admissible only to give context to the statements made by the defendant. The relevant portion of the transcript of the recorded statement is as follows:

{¶6} Glenn Young, Jr.: I got your messages this morning.

Clara Young: Yea, I was just kinda wondering why you had to take those pain pills Bud.[2]
Glenn Young, Jr.; Huh? Clara Young: I'm wondering why you got in there and took my pain pills.
Glenn Young, Jr.: I only took 5 of them.
Clara Young: (Unintelligible) you took more than 5, because I only used 5 of them and there are 30 left and that means you took 25.
Glenn Young, Jr.: No I didn't.
Clara Young: Glenn Young Jr., there's nobody else in this world been in my house, since I brought them pills from Sis's.
Glenn Young, Jr.: I'll get them and bring them back to you.
Clara Young: Huh?
Glenn Young, Jr.: I'll buy some and bring them back to ya. Clara Young; I don't want you to buy some. I want to know why you took them? Glenn Young Jr.: Because I needed them. You never gave them to me when I asked.
Clara Young: Well maybe if you would have asked I would have gave you one, but you didn't need to steal from me.
Glenn Young Jr.: Well what (unintelligible)
Clara Young: And the same thing with the Flexural (sic).
Glenn Young Jr.: Yea, Well (sic), I didn't take the Flexural (sic).
Clara Young: O.k. So, why did you take the pain medicine?
Glenn Young Jr.: Because I needed them. Clara Young: Like I said nobody has been in this apartment but you, so I knew it had to be you.
Glenn Young Jr.: I know who it is, I will bring them back to you.

{¶7} The final State's witness was Patrolman Larry Freed. Patrolman Freed testified he made contact with Clara Young on March 3, 2011, as part of his duties with the Beverly Police Department. He had been advised by Chief Sams that pills had been stolen from her residence. He went to Clara Young's apartment to assist her in recording a phone conversation with her son. He did not tell Ms. Young what to say during the conversation. He testified he provided a complete copy of the conversation to the prosecuting attorney's office and to Chief Sams, who was investigating the complaint. He testified nothing was edited or removed from the conversation. At this point in the trial, the State offered the tape into evidence. Defense counsel renewed his objection to the tape and requested a limiting instruction. The limiting instruction was as follows:

Ladies and gentleman, you listened to a tape, or at least a recording of an alleged conversation between Clara Young and Glenn Young, Jr. Clara Young's statements on the CD are not offered for the truth of those statements-that is, they're not offered to prove the assertions made by Mrs. Young, in that tape. They are admissible only to provide context for Mr. Young's replies. So, the information that-that she provided, accusations that she made, statements that she made, are not evidence of those and you are to disregard them as such. The only reason you heard them, was so that you would have the context in which to understand the statements allegedly made by Mr. Young.

{¶8} On cross-examination, Patrolman Freed testified he never looked at the pill bottle, checked for fingerprints on the bottle, or took photos of the bottle. He testified it was Chief Sams' suggestion to record a phone conversation and try to get Appellant to admit guilt.

{¶9} At this point in trial, counsel for the parties stipulated that Clara Young's medication contained Hydrocodone, a dangerous drug as defined in R.C. 4729.02. [3] The State offered the tape-recorded conversation as Exhibit A, and the transcript of the recorded conversation as Exhibit B, into evidence. The exhibits were admitted and the State rested. Defense counsel made a CrimRule 29 motion for acquittal based on insufficient evidence. The motion was denied.

{¶ 10} The defense first called Aimee Young ("Aimee"), Appellant's ex-wife, with whom he continued to have a close relationship. In early 2011, Appellant and Aimee were living in a camper in Meigs County, Ohio. Aimee testified she worked at a gas station, Appellant was unemployed, and finances were "difficult." Appellant's mother invited them to stay so they went to her apartment on or about February 26, 2011. Aimee was unaware of Ms. Young's recent surgery or that Ms. Young had medications. Aimee also testified Appellant's mother had made other accusations against him in the past.

{¶11} On cross-examination, Aimee acknowledged Appellant and she moved to Ravenswood, West Virginia after the allegations of theft surfaced but returned to Ms. Young's apartment 2-3 weeks prior to the trial. Aimee testified Ms. Young was emotional, crying and upset at the thought of having to testify against her son. Aimee also testified Appellant admitted to taking 5 ...


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