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State v. Oldaker

Court of Appeals of Ohio, Fourth District, Meigs

March 21, 2017

STATE OF OHIO, Plaintiff-Appellee,
GABRIEL C. OLDAKER, Defendant-Appellant.

          Angela Wilson Miller, Jupiter, Florida, for appellant.

          James K. Stanley, Meigs County Prosecuting Attorney, and Jeremy L. Fisher, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.


          William H. Harsha, Judge

         {¶1} After his conviction for kidnapping, Gabriel Oldaker's first assignment of error asserts that the trial court erred by denying his motion for a new trial. He claims that he should have received a new trial because: (1) the trial court erred by excluding the admission of an exhibit containing the victim's Facebook posts; and (2) the state failed to provide an unrelated inventory sheet of items seized from Oldaker's residence; that inventory did not include a gun, a fact Oldaker contends was important to his defense.

         {¶2} However, even if the trial court's rationale for excluding the victim's Facebook posts was incorrect, the statements would not have been admissible because they constituted hearsay and were not necessarily inconsistent with the victim's trial testimony. More importantly, the trial court allowed the substance of the post into evidence during the cross-examination of the victim; and the victim's testimony was corroborated by his cousin, as well as the testimony of a Meigs County Deputy Sheriff, and was never directly controverted. We conclude that any error was harmless.

         {¶3} Despite Oldaker's claim that it was relevant, the police inventory of the items it seized from Oldaker's residence nearly three months after the kidnapping occurred was not materially exculpatory. The fact that there was no gun in his home three months later could not disprove that Oldaker had a gun in his possession on the date of the kidnapping. Therefore, there was no Brady error. We overrule Oldaker's first assignment of error.

         {¶4} Next Oldaker contends that his convictions for kidnapping are not supported by sufficient evidence and are against the manifest weight of the evidence. But the victim and Michael Cremeans both testified that Oldaker held the victim at gunpoint and forced him to ride from Fisher's residence to the garage so that they could retrieve the car that Fisher sold to the victim. And a Deputy Sheriff testified that on the date that the offenses occurred, Oldaker called him and told him he had the victim and asked whether there were any outstanding warrants for him. After viewing this evidence in a light most favorable to the prosecution, any rational trier of fact could have found the state presented sufficient evidence of kidnapping.

         {¶5} Moreover, because the jury was free to credit this same evidence, it did not clearly lose its way or create a manifest miscarriage of justice by finding that the state had proven the essential elements of kidnapping beyond a reasonable doubt. We reject Oldaker's claim contesting the sufficiency and manifest weight of the evidence, overrule his second assignment of error, and affirm his convictions.

         I. FACTS

         {¶6} The Meigs County Grand Jury returned an indictment charging Oldaker with two counts of kidnapping. Oldaker pleaded not guilty to the charges, and the case proceeded to a jury trial that produced the following evidence.

         {¶7} The victim, Brandon Cremeans, purchased a car from Dewayne Fisher, but a dispute arose between them concerning the sale. Brandon's cousin, Michael, deceived Brandon into getting into a vehicle and drove him to Fisher's residence, where Fisher and Fisher's ex-wife blocked the vehicle in the driveway. Fisher and his ex-wife then approached the vehicle, and Fisher, who was armed with a rifle, demanded money that Brandon still owed him for the car, or the return of the car. Fisher took his rifle and slammed the muzzle into Brandon's eye, causing him severe injury that ultimately cost him his eye.

         {¶8} According to the testimony of both Brandon and Michael, Oldaker, who was armed with a gun, arrived at Fisher's residence after Brandon had been assaulted. They testified that Oldaker forced Brandon into the front passenger seat of a vehicle. Oldaker sat right behind Brandon and pointed a gun at Brandon's head as they drove to JTS Automotive, a car-repair shop where Brandon was storing the car. After they let Brandon out in the garage, they hooked up the car and took it away.

         {¶9} Ohio Bureau of Criminal Investigation ("BCI") Agent Michael Trout testified that he retrieved the videotape surveillance from the car-repair shop and identified Oldaker wearing gym shorts in the footage, but could not see Oldaker holding anything he could identify as a gun. Meigs County Deputy Sheriff Michael Hupp testified that he was an old family friend of Oldaker and that on the date in question, Oldaker called him and told him that "he had Brandon Cremeans" and asked him whether there were any outstanding warrants for him. Deputy Sheriff Hupp told Oldaker that Hupp would meet him at Oldaker's house; once there Hupp informed Oldaker that there were no warrants for Brandon and that there was nothing he could do at the time. According to Hupp, he did not believe that a crime had occurred at that point.

         {¶10} After Oldaker took the car away, Michael drove Brandon to get gas and then dropped him off outside a radio station, where he was picked up and taken to a hospital. Brandon lost his eye as a result of Fisher's assault.

         {¶11} Michael conceded on cross-examination that he never advised the police that Oldaker was involved in the crimes against Brandon. He also acknowledged that he only agreed to testify against Oldaker on the day before trial as part of a plea bargain, which allowed him to plead guilty to possession of criminal tools, with kidnapping charges being dismissed. He testified that he did not previously tell the police about Oldaker because he was scared of him.

         {¶12} During cross-examination Brandon Cremeans admitted that he had a Facebook page, which he created on his sister's ex-husband's cellular telephone when he lived with them in January or February of 2015. But he initially denied making a post about Oldaker:

Q: * * * [D]id you ever make any posts or anything on facebook [sic] since this incident happened?
A: I'm hardly ever on Facebook. I had some lady contact me, something about dating with my phone number and never talked to her a day in my life.
BY ATTORNEY SAUNDERS: May I approach Your Honor?
BY THE JUDGE: Sure. Has it been marked for identification.
Q: Yeah. Marked as Defendant's Exhibit 'A'. Can I show you, well I'll show you this um, I don't know if you recognize this first page?
A: Yeah, that's Gabe.
Q: Okay. Um, who's, who's that?
A: That's my facebook [sic].
Q: So that's your Facebook?
A: Yes sir.
Q: Cool. Um, so you wrote that?
A: No, I didn't.
Q: You didn't write it?
A: No.

         {¶13} However, on further cross-examination, Brandon testified that the Facebook post stating that "if he didn't do it he still was with the guy who did" sounded familiar to him and came from his Facebook account:

Q: Well if it's your Facebook, who wrote it?
A: The only other person my phones logged in is Joe Walters, who is my sister's ex-husband.
Q: I thought you said you hadn't been with Joe since-
A: I haven't.
Q: How, how are you talking to people on Facebook and ...

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