APPEAL from the Franklin County Court of Common Pleas,
(C.P.C. No. 11CR-11-5894).
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Tyack, Blackmore, Liston & Nigh Co., L.PA., and Jonathan T. Tyack, for appellant.
(¶ 1} Defendant-appellant, Michael L. Shipley, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of five counts of burglary and three counts of theft. For the following reasons, we affirm the judgment of the trial court.
(¶ 2} Appellant was indicted on six counts of burglary, all second-degree felonies, in violation of R.C. 2911.12, two fourth-degree felony counts of theft, in violation of R.C. 2913.02, and two fifth-degree felony counts of theft, in violation of R.C. 2913.02. At the request of defendant-appellee, the state of Ohio, one count of burglary and one count of theft were severed from the original indictment for purposes of trial and subsequently dismissed without prejudice by the trial court. The charges arose from five different incidents, which took place on August 21 and 28, 2011 at different locations.
(¶ 3} The following evidence was adduced from the state's case-in-chief. On August 21, 2011, realtor Tom Amicon held an open house for homeowners Kelly and Sean Edgell at the location of 3945 Dinon Drive. The open house took place between 2:00 and 4:00 p.m. Amicon testified that only two individuals viewed the home, appellant and Crystal Galloway, at approximately 3:00 p.m. Appellant and Galloway entered the home, and, according to Amicon, appellant immediately engaged him in conversation, while Galloway went directly into the bedroom. Amicon testified that appellant instructed him "[d]on't look at her" because her mother had just died, and she could begin to cry at any minute. (Tr. 135.) According to Amicon, appellant explained he brought Galloway to look at houses because she was having a tough day.
(¶ 4} Amicon testified that he was concerned because appellant engaged him in unusual conversation having nothing to do with the home while Galloway was out of sight. Once Galloway came out of the bedroom, the couple made a hasty exit. The next morning, Amicon was contacted by Kelly Edgell, who informed him some of their jewelry was missing. Edgell testified approximately $600 worth of jewelry was taken. Amicon called the police and placed an alert on a realtor's website, at which time he learned another home had been "hit." (Tr.145.) Both Amicon and Edgell testified appellant and Galloway did not have permission to enter the home for the purpose of taking personal belongings from the home.
(¶ 5} Also on August 21, 2011, realtor Annette Marble held an open house for homeowners David and Tracey Griffis at the location of 4401 Kathryns Way. The open house took place between 2:00 and 4:00 p.m. Marble testified that, at approximately 3:45 p.m., as she was closing the open house, a dark truck pulled up and its occupants, Galloway and appellant, asked if they "still had the open house." (Tr. 220.) At about that same time, the homeowners arrived back at the home. Marble checked with them to see if she could show the arriving couple the home. They answered in the affirmative and left.
(¶ 6} Marble let both Galloway and appellant into the home. Marble testified the female immediately went upstairs, and appellant began discussing how Galloway's mom had just died and "not to look at her because she'll cry and she was really upset." (Tr. 224.) Marble testified that appellant stated, because of the mother's death, they could now afford a home. According to Marble, the conversation continued until appellant's phone rang, at which point Marble thought to check on Galloway. According to Marble, as she moved toward the foyer, appellant began to ask more questions about the house, pulling her attention back into the family room. Appellant's phone rang a second time when Marble observed Galloway exit the master bedroom, closing the door behind her. Appellant and Galloway then left the premises.
(¶ 7} When the homeowners pulled up to the home, Marble, suspecting something was amiss, asked if they had anything of value in the home. Tracey Griffis testified that her husband ran up to the master bedroom and discovered their jewelry, valued at approximately $7, 000, was gone. She further testified that appellant was one of the individuals she saw enter her home on August 21, 2011. Both Marble and Tracey Griffis testified appellant and Galloway did not have permission to enter the home for the purpose of taking any personal property.
(¶ 8} The third incident occurred on August 28, 2011, when realtor Sandy Clapham held an open house for homeowners Ryan and Erin Arens, at the location of 6226 Kendall Ridge Boulevard. The open house occurred between 1:00 and 3:00 p.m. Clapham testified she had placed signs up around the neighborhood denoting the home had a first floor master bedroom. According to Clapham, appellant and Galloway entered the home, and appellant immediately stated "I want you to show me the basement, and she wants to see the master bedroom." (Tr. 283.) Clapham testified that she informed the couple the master bedroom was to the right, and Galloway headed directly to it. According to Clapham, appellant asked "more than twice" to see the basement. (Tr. 286.) However, Clapham testified she was afraid to go into the basement alone with appellant so she ignored the request and retreated to the kitchen, which had multiple exits and access to her cell phone. Clapham described appellant as being "in [her] face" as she retreated. (Tr. 288.)
(¶ 9} According to Clapham, appellant stated he was taking Galloway to look at homes because her mother had just died, and she was having emotional difficulties, which included bouts of crying. Appellant continued to talk about Galloway, and, at one point, Clapham attempted to move out of the kitchen. Appellant sidestepped her, placed himself in the doorway to the master bedroom, and spread his legs and arms apart. According to Clapham, appellant completely obstructed her view into the master bedroom for "[a] few minutes." (Tr. 295.)
(¶ 10} Clapham again retreated into the kitchen and appellant followed. Clapham testified appellant continued to converse with her while Galloway headed up the stairs. After some time, Clapham stated she became "restless, " and appellant went to the stairs and yelled up to Galloway. (Tr. 296.) According to Clapham, she attempted to seize on this "break, " grabbed her phone and purse, and moved towards the front door to exit. (Tr. 297.) However, just as Clapham began to leave, appellant questioned her on where she was heading and followed her outside. Clapham stated, upon exiting the home, a neighbor engaged appellant in conversation. Clapham then saw appellant's vehicle, a black Dodge Ram, and memorized the license plate number because she believed something unusual was going on. Clapham then re-entered the home, while appellant was still engaged in conversation with the neighbor and wrote down the license plate number. According to Clapham, she called her office to describe what happened, sent a text to the Arens's to come home, and then called the police and provided the license plate number.
(¶ 11} Erin Arens, the homeowner, testified she returned home immediately after receiving a voicemail from the realtor and began to check the home for missing items. According to Arens, she immediately noticed watches were missing from the master bedroom, as well as prescription medicine from the master bath. A few days later, Arens noticed more items missing and testified the total value of the missing items was between $800 and $1, 000. Both Clapham and Arens testified appellant and Galloway did not have permission to enter the home for the purpose of taking personal property from the home.
(¶ 12} The fourth incident also occurred on August 28, 2011. Realtor Bryan Harrison held an open house for homeowners James and Patricia Deuschle at the location of 4264 Wyandotte Woods between 2:00 and 4:00 p.m. Harrison testified the purpose of an open house is to "bring in people that might have an interest in the home." (Tr. 174.) Harrison stated before the open house began, he accessed the "Columbus Board of Realtors' MLS" website and checked the "alert" section. (Tr. 175.) Although he noticed an alert, which made him wary, he continued to prepare for the open house. Shortly after 2:00 p.m., Harrison testified appellant and Galloway arrived at the home, and he believed they matched the description provided in the alert. According to Harrison, Galloway and appellant entered the home, and Galloway headed straight up the stairs while appellant engaged Harrison in conversation. Harrison testified appellant told him Galloway had recently lost her father and was looking to buy a house.
(¶ 13} Harrison stated none of the Deuschle's property was upstairs because those bedrooms were not in use, so he did not follow Galloway upstairs. According to Harrison, Galloway came downstairs and headed directly to the master bedroom, and this time he followed. Harrison stated he began to ask Galloway "open-ended questions" about the home, and she gave only one-word answers. (Tr. 182.) The couple then left the home, and Harrison wrote down the license plate number, a description of their vehicle, and then called the police and the Deuschle's.
(¶ 14} According to James Deuschle, after receiving a phone call from Harrison, he returned home. Deuschle checked the house and no property was missing. Both Harrison and Deuschle testified appellant and Galloway did not have permission to enter the home for the purpose of taking personal property from the home.
(¶ 15} The fifth incident, again, occurred on August 28, 2011. Realtor Lynn Elledge held an open house for homeowners Jason and Jennifer Rees at the location of 3900 Man O' War Court, between the hours of 2:00 and 4:00 p.m. According to Elledge, appellant and Galloway entered the home, and Galloway immediately went upstairs while appellant engaged him in conversation. Elledge testified that appellant told him Galloway's mother had just died and they were looking for a house for her kids. Elledge stated he asked appellant if they were buying the house together, and appellant stated "No. I work for her." (Tr. 252.)
(¶ 16} According to Elledge, because it was a small house, he became concerned when Galloway was upstairs for such a long period of time and left a note for the Rees's to check their personal belongings upstairs. Elledge received a phone call from the homeowners telling him items were missing. Elledge called his broker and the following Monday called the police.
(¶ 17} Jennifer Rees testified that, after she arrived home and read the note from her realtor telling her to check her personal belongings, she went upstairs and checked her jewelry she had hidden, only to discover it was missing. Rees testified the value of the stolen jewelry was over $5, 000. Both Elledge and Rees testified neither appellant nor Galloway had permission to enter the home for the purpose of taking personal property.
(¶ 18} Subsequent to the above events, the Columbus Police Department's Strategic Response Bureau unit began to investigate appellant and Galloway for an incident at GFS Marketplace, a grocery store. Detective Michael Yinger testified search warrants were obtained to place GPS units onto both appellant and Galloway's vehicle. This surveillance ultimately led to an incident at GFS and the arrest of appellant and Galloway. Appellee introduced, over objection, into evidence a GFS surveillance video pursuant to Evid.R. 404(B). An independent review of the video reveals that appellant and Galloway entered GFS at separate times. Appellant arrived at the back aisle of the store and placed several pairs of pants into his cart. Galloway approached and began to rummage through the items in appellant's cart. Galloway then took appellant's cart, and appellant took the empty cart. Appellant can then be seen walking back to the pants display alone. Appellant and Galloway exited GFS separately, neither carrying grocery bags nor pushing carts. Detective Yinger noted when Galloway exited the store, a "flimsy" flat purse she had taken into the store, now appeared "full." (Tr. 373.) Galloway later admitted at trial to stealing multiple pairs of "Chefwear pants." (Tr. 550.)
(¶ 19} The jury was given a limiting instruction on the use of this evidence both at the time the evidence was admitted and at the close of the evidence with the rest of the court's instructions. The court explained to the jury that "[t]his evidence is admissible to show motive, opportunity, intent, purpose, preparation, plan, absence of mistake or accident, or to show a scheme or a plan. It's like MO, modus operandi, if you've heard that before. So you can consider this ...