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State v. Dahms

Court of Appeals of Ohio, Third District, Seneca

June 12, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JEFFREY B. DAHMS, DEFENDANT-APPELLANT.

         Appeal from Seneca County Common Pleas Court Trial Court No. 15-CR-0163

          Jennifer Kahler for Appellant

          Stephanie J. Reed for Appellee

          OPINION

          PRESTON, P.J.

         {¶1} Defendant-appellant, Jeffrey B. Dahms ("Dahms"), appeals the May 6, 2016 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm in part, and reverse in part.

         {¶2} This case stems from a break-in at a Subway restaurant located in Fostoria, Ohio around 1:52 a.m. on April 21, 2015 in which an object was thrown through the restaurant's window and a cash drawer was stolen. Law enforcement learned from Kira Harrold ("Harrold"), one of Dahms's girlfriends, that Dahms was the person who committed the break-in. Around the time of the break-in, Dahms was known to stay at the home of his sister, Teresa Brown ("Teresa"), the home of his friend, Sarah Thornton ("Thornton") in Findlay, Ohio, or with other friends at Nye's Trailer Park in Fostoria, Ohio. The Subway restaurant is located near Nye's Trailer Park. After Dahms learned that he was suspected of the break-in, he called Thornton numerous times and wrote her several letters requesting that she provide law enforcement with an alibi for him-namely, to tell law enforcement that Dahms was at her residence the night of April 20-21, 2015. To secure her statement, Dahms not only promised to repay her $500 that Thornton loaned him, but Dahms also threatened to turn Thornton into the Hancock County Metropolitan Housing Authority ("Housing Authority") for violating the terms of her subsidized-housing lease.

          {¶3} On August 5, 2015, the Seneca County Grand Jury indicted Dahms on four counts, including: Count One of breaking and entering in violation of R.C. 2911.13(A), (C), a fifth-degree felony; Count Two of bribery in violation of R.C. 2921.02(C), (G), a third-degree felony; Count Three of intimidation of a witness in a criminal case in violation of R.C. 2921.04(B)(2), (D), a third-degree felony; and Count Four of attempted complicity to tampering with evidence in violation of R.C. 2923.02(A), (E)(1), 2923.03(A)(1), (F), and 2921.12(A)(1), (B), a fourth-degree felony. (Doc. No. 1).

         {¶4} On August 14, 2015, Dahms appeared for arraignment and entered pleas of not guilty. (Doc. No. 7). On October 2, 2015, Dahms filed a motion for relief from "Prejudicial Joinder, " which he withdrew on October 13, 2015. (Doc. Nos. 22, 34). Also on October 13, 2015, Dahms filed a motion to continue trial, which the trial court granted. (Doc. Nos. 35, 37). On November 24, 2015, Dahms filed a motion for "Supplemental Discovery" requesting an evidentiary hearing. (Doc. No. 43). On November 30, 2015, Dahms filed a motion to continue trial, which the trial court granted. (Doc. Nos. 45, 47).

         {¶5} That same day, Dahms filed a motion for "a Pre-Trial Copy of the Transcript of the Grand Jury Proceedings." (Doc. No. 44). On December 3, 2015, the State filed a memorandum in opposition to Dahms's motion for "a Pre-Trial Copy of the Transcript of the Grand Jury Proceedings." (Doc. No. 48). After a hearing on December 4, 2015, the trial court granted Dahms's motion for supplemental discovery, scheduled an evidentiary hearing for December 17, 2015, and took under advisement Dahms's request for a copy of the transcript for the grand jury proceedings. (Doc. Nos. 50, 51). On December 9, 2015, the trial court denied Dahms's request for a copy of the transcript of the grand jury proceedings. (Doc. No. 53). An evidentiary hearing was held on December 17, 2015. (Doc. No. 56); (Dec. 17, 2015 Tr. at 1).

         {¶6} The case proceeded to a jury trial on April 26-29, 2016. (Doc. No. 85). The jury found Dahms guilty as to the counts in the indictment. (Doc. Nos. 85, 86); (Apr. 30, 2016 Tr. at 2-3). On May 6, 2016, the trial court sentenced Dahms to 12 months in prison on Count One, 36 months in prison on Count Two, 36 months in prison on Count Three, and 18 months in prison on Count Four, and ordered that Dahms serve the terms consecutively for an aggregate sentence of 102 months. (Doc. No. 89).

         {¶7} On May 25, 2016, Dahms filed his notice of appeal. (Doc. No. 93). He raises five assignments of error for our review. For ease of our discussion, we will address Dahms's first and second assignments of error together, followed by his third, fourth, and fifth assignments of error.

         Assignment of Error No. I

         The State failed to support Appellant's convictions for Bribery and Intimidation of a Witness with legally sufficient evidence.

          Assignment of Error No. II

         Appellant's convictions fell against the manifest weight of the evidence.

         {¶8} In his first assignment of error, Dahms argues that his bribery and intimidation-of-a-witness-in-a-criminal-case convictions are based on insufficient evidence.[1] In his second assignment of error, Dahms argues that his bribery, intimidation-of-a-witness-in-a-criminal-case, breaking-and-entering, and attempted-complicity-to-tampering-with-evidence convictions are against the manifest weight of the evidence.

         {¶9} Manifest "weight of the evidence and sufficiency of the evidence are clearly different legal concepts." State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). As such, we address each legal concept individually.

         {¶10} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, "[t]he 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." Id. "In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 ("Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence."), citing Thompkins at 386.

         {¶11} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, "'weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, "[o]nly in exceptional cases, where the evidence 'weighs heavily against the conviction, ' should an appellate court overturn the trial court's judgment." State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

         {¶12} At trial, the State offered the testimony of Kira, who testified that she was sleeping at her sister's, Kady Harrold ("Kady"), house the night of April 20-21, 2015. (Apr. 26, 2016 Tr., Vol. II, at 160-161). According to Kira, she was woken early that morning by Dahms, who was her boyfriend at the time. (Id. at 161). Kira testified that Dahms told her that "he threw a brick through Subway's window, " and that Dahms was holding "a wad of cash and a bag full of change." (Id. at 164-165). Kira stated that Dahms also told Kady and Kady's boyfriend, Andy, about what he had done. (Id. at 165).

         {¶13} According to Kira, she revealed to law enforcement that Dahms was the person who committed the Subway restaurant break-in because she was mad at him since they "had gotten into it and [she] went to the hospital and spoke with the officer. And it was just, the truth needed to come out. [Dahms] should be punished for what he done [sic]." (Id. at 166-167). Kira provided law enforcement with a written statement reflecting that Dahms committed the Subway restaurant break-in. (Id. at 167). Kira testified that Dahms called her "a snitch." (Id.). She further testified that she received phone calls and letters from Dahms asking her to recant her statement to law enforcement. (Id. at 169-170). (See also State's Exs. 8, 9). Kira identified State's Exhibit 8 as those letters and read a portion of the letters for the jury, and identified State's Exhibit 9 as those phone calls, which were played, in part, for the jury. (Apr. 26, 2016 Tr., Vol. II, at 169-175); (See also State's Exs. 8, 9). Kira did not agree to change her statement "[b]ecause it's the truth." (Apr. 26, 2016 Tr., Vol. II, at 177).

         {¶14} On cross-examination, Kira testified that she alleged in February 2015 to law enforcement that Dahms assaulted her. (Id. at 178). Kira testified that she went to the hospital in April 2015 after Dahms "drug [her] down the street with a car" but did not pursue charges against Dahms. (Id. at 180-181).

         {¶15} On re-direct examination, Kira testified that she knew specific details regarding the Subway restaurant break-in, which she reported to Detective Shilo Frankart ("Detective Frankart") of the Fostoria Police Department, because Dahms "told" her those details. (Id. at 182-183).

         {¶16} On re-cross examination, Kira testified that she could have learned those details from someone other than Dahms, but maintained that she heard the details of the break-in from him. (Id. at 183-184).

         {¶17} Next, Kady testified that Dahms told her that "he broke into Subway." (Id. at 184-185). She testified that Dahms was at her house "shortly after" the break-in. (Id. at 185). On cross-examination, Kady clarified that Dahms confessed about the break-in when she "was just waking up." (Id. at 190-191). Kady stated Andy and Kira were also present. (Id. at 191).

         {¶18} Richard Ray Evans ("Evans") testified that he was with Dahms before the break-in and recalled Dahms asking him if he wanted to "hit a lick, " meaning "steal some money." (Id. at 194-196). Evans declined Dahms's offer, Dahms left, and Evans again saw Dahms at 1:30 in the morning "[c]arrying a safe box." (Id. at 196-197). According to Evans, Dahms told him that he got the "safe box" from the Subway restaurant. (Id. at 197).

         {¶19} Evans testified that he recalled a "gray with a blue skull" hooded sweatshirt belonging to Dahms in Dahms's vehicle, which Evans took possession of after Dahms was arrested. (Id. at 199). According to Evans, he "wore [the hooded sweatshirt] to the mud bogs one day" and that it is "still out at the mud bogs." (Id.). Evans testified that Dahms told him where he hid the "safe box" at Nye's Trailer Park. (Id. at 206).

         {¶20} Evans identified State's Exhibit 10 as recordings of phone calls that he received from Dahms, which were played for the jury. (Id. at 200-204); (State's Ex. 10). In those phone calls, Dahms can be heard telling Evans to "take that trash out and fucking get rid of all the junk in my room, " "get rid of that trash, " and to "[g]et rid of that, bro." (Apr. 26, 2016 Tr., Vol. II, at 202-204); (State's Ex. 10). According to Evans, Dahms was referring to "[t]he safe and then maybe whatever's in the car" when he was instructing him to get rid of the "trash." (Apr. 26, 2016 Tr., Vol. II, at 204). Evans testified that he did not get rid of the "safe box." (Id. at 207).

         {¶21} On cross-examination, Evans testified that he did not report to Detective Frankart that he knew the location of the "safe box." (Id. at 209). Regarding the hooded sweatshirt, Evans testified that he could not provide it to Detective Frankart. (Id. at 211-212). Although Evans did not see the surveillance video, he knew what hooded sweatshirt Detective Frankart was searching for because Evans "watched [Dahms] walk down the street in the middle of the neighborhood with the safe box and the hoody on" after he committed the break-in. (Id. at 221).

         {¶22} On re-direct examination, Evans provided the following clarification regarding the hooded sweatshirt:

Well, when you go to the mud bogs, it was chilly out, so I had [the hooded sweatshirt] on. Jumped out of the truck in probably 3 or 4 foot [sic] of mud. Once the hoody was soaked with mud, it was cold, because it was sort of, like, rainy out.
I took it off. My buddy got stuck on his four-wheeler. We didn't have no [sic] rope or no [sic] chain, so I'm like, well, hell, tie this hoody up to it and try to pull him out. It was a four-wheeler, not a truck, an ATV.
So we tied the hoody to the bumper of the truck and the ATV ripped it clean in half when we tried to pull it out, so we just left [the hooded sweatshirt] there.

(Id. at 223). According to Evans, he did not provide Detective Frankart with the location of the safe box because of his close friendship with Dahms. (Id. at 224).

         {¶23} The State next offered the testimony of Thornton who testified that she saw Dahms at her residence "about 1:00 in the afternoon" on April 20, 2015. (Apr. 27, 2016 Tr., Vol. I, at 4-5). According to Thornton, Dahms was at her residence the next morning when she woke around 7:50 a.m. (Id. at 5-6). Thornton went to bed the previous evening between 11:00 p.m. and 1:00 a.m. (Id. at 6-7). Thornton received phone calls and letters from Dahms since that day. (Id. at 7). (See State's Exs. 11, 12, 13, 14, 15).

         {¶24} Thornton identified State's Exhibit 15 as a recording of a phone call from Dahms to Thornton, which was played for the jury. (April 27, 2016 Tr., Vol. I, at 7-8). In that recording, Dahms can be heard telling Thornton about the Subway break-in and stating,

Just remember that if anybody asks you, because it happened Monday the 20th. * * * But I stayed at your house on the 20th okay? * * * I stayed at your house on the 20th, Monday the 20th. All right?

(Id. at 9); (State's Ex. 15). According to Thornton, Dahms asked her to "[w]rite a statement" and told her to include in her statement "[t]hat he was at [her] house and he was there." (April 27, 2016 Tr., Vol. I, at 22). Thornton did not make that statement because she "didn't want to be involved." (Id. at 22-23). According to Thornton, she did not know if Dahms left her residence between the time she went to sleep on April 20 and the time she woke on April 21, 2015. (Id. at 23).

         {¶25} Thornton identified State's Exhibits 11, 12, 13, and 14 as the letters she received from Dahms. (Id. at 24). In one of the letters, Dahms "mentions giving [Thornton] $500 for a birthday present for [Thornton's adult son]." (Id. at 25). Thornton interpreted that statement to mean that Dahms would repay her the money that he owed her if she wrote the statement. (Id.). Dahms confesses in that letter that he owed Thornton money, and Thornton testified that Dahms owed her "about $400." (Id.). Thornton testified that Dahms never gave her son money for his birthday before. (Id.).

         {¶26} In another letter, Dahms tells Thornton "that his sister is going to call [the Housing Authority]." (Id. at 26). Thornton interpreted that statement to mean that she needed to "[w]rite the statement" to prevent Teresa from calling the Housing Authority, which would result in Thornton losing her "subsidized housing" assistance. (Id.).

          {¶27} On cross-examination, Thornton testified that she has "some memory loss because [she] had strokes, so [she] can't remember everything." (Id. at 32). According to Thornton, Dahms asked her to write a statement reflecting that he was at her residence during the times that she could remember-before she went to sleep and after she woke. (Id. at 33). Thornton stated that Dahms asked her to write a truthful statement, not a lie. (Id.). She testified that she would not lie for Dahms. (Id. at 34). Thornton testified that her sister-in-law, who read Dahms's letters, suggested to Thornton that Dahms was trying to bribe her. (Id. at 38). Thornton testified that she eventually blocked Dahms from being able to call her because he threatened her for not providing the statement that he wanted her to provide to law enforcement. (Id. at 48).

         {¶28} Thornton testified that Dahms's bedroom was located on the second floor of her two-story apartment. (Id. at 42). She stated that she sleeps in a chair in the living-room portion of her apartment, which is located within hearing distance of the front and back doors to the apartment. (Id. at 43-44). She testified that she did not hear Dahms leave the apartment after she went to sleep on April 20, 2015. (Id. at 44). According to Thornton, when she woke at 7:50 a.m. on April 21, 2015, she saw Dahms walking down the stairs. (Id. at 44). The Subway restaurant is approximately 15-20 minutes from Thornton's apartment. (Id. at 45). Thornton testified that Dahms did not have a vehicle. (Id.). Thornton was not aware if anyone provided Dahms a ride from her apartment the night of April 20-21, 2015. (Id. at 46).

         {¶29} The following exchange took place regarding Dahms threatening Thornton:

[Thornton]: I took it as a threat. That's why I blocked him. Because he just kept yelling at me. Actually, he called me a B-word and some, you know, some profound language he didn't need to use at me and that's why I took it as threatening me.
Because you don't talk to me like that, especially you know, when I give you a place to live and, you know, I've been your friend for so many years. But the way - - he was yelling and screaming at me all the time and it as, like, what do you want me to do? There ain't [sic] really much I can do.
You know, and then he just kept yelling at me. That's why he got blocked. He wouldn't leave me alone.
[Dahms's counsel]: Because he wanted you to give that statement and you decided you wouldn't give that statement - -
[Thornton]: Right.

(Id. at 48). The defense then played for the jury another phone call from Dahms to Thornton. (Id. at 50); (State's Ex. 15). In that recording, Dahms can be heard saying to Thornton,

Listen. Sunday, Monday, and Tuesday night, I was there. And then Wednesday is when I went to Fostoria. I went to Fostoria Wednesday night, stayed overnight with Kira, and then came back on Thursday and started my job. Because Wednesday night is when I got my car.
And I want you to tell him that * * * Tell him that you'll go to court for me.

(Apr. 27, 2016 Tr., Vol. I, at 52). Thornton testified that she was concerned that she would be in trouble if she were to provide a statement to law enforcement. (Id. at 63).

         {¶30} Rickey Perrin ("Perrin") testified on behalf of the State. (Id. at 63). In exchange for his testimony, Perrin received a favorable sentence for his drug-related conviction. (Id. at 64). Perrin testified that he was incarcerated with Dahms and that Dahms confessed to smashing the window of the Subway restaurant and stealing a cash box. (Id. at 65-67). Regarding Thornton, Perrin testified that Dahms told him

that [Thornton] was a girl that he was claiming that he stayed the night at her house and that she was confused because he know [sic] he didn't stay the night there, but she didn't know what she was talking about because the things she was saying was making him look good.

(Id. at 68).

         {¶31} On cross-examination, although Perrin was in the courtroom at the time of Dahms's evidentiary hearing, Perrin testified that he did not remember any of the evidence presented during Dahms's hearing because he "was trying to get out of jail that day, too, so [he] didn't pay no [sic] attention to what was going on with [Dahms]." (Id. at 70). However, on re-cross examination, Perrin recalled that Dahms's evidentiary hearing lasted "for a long time." (Id. at 85).

         {¶32} Detective Frankart testified that he investigated the Subway restaurant break-in. (Apr. 27, 2016 Tr., Vol. II, at 90-92). According to Detective Frankart, Kira reported to law enforcement that Dahms was the person who broke into the Subway restaurant. (Id. at 97). Kira reported to law enforcement that Dahms confessed to her to throwing a brick through the Subway restaurant's window and stealing the cash drawer-facts which were not known to the public. (Id. at 98). Kira reported that she saw Dahms the night of the break-in and saw that he had $300, which matched the amount of money stolen from the Subway restaurant. (Id. at 97-98).

          {¶33} Detective Frankart identified State's Exhibit 20 as a disc containing audio recordings of Dahms's phone calls to Teresa. (Id. at 117). One of those phone calls was played for the jury in which Dahms can be heard telling Teresa "to go get [Thornton] and get a statement to the police." (Id. at 120); (State's Ex. 20). Dahms can further be heard telling Teresa,

Because when they take this stuff to the grand jury * * * I need you to have that statement in with that stuff so they can say, "Well, the guy, this lady's claiming that he stayed overnight." Do you know what I mean? And [Thornton] know [sic] that I stayed there.

(Apr. 27, 2016 Tr., Vol. II, at 120); (State's Ex. 20). Later in the conversation, Dahms can be heard instructing Teresa, "All I wanted you to do was pick up the * * * statement [from Thornton] that I wrote out and had notarized." (Apr. 27, 2016 Tr., Vol. II, at 125); (State's Ex. 20).

         {¶34} Detective Frankart testified that Dahms identified Thornton as an alibi witness for the night of the Subway break-in. (Apr. 27, 2016 Tr., Vol. II, at 108). He stated, "During the first interview, she was not a main defense of his. It became as the investigation proceeded, she became a main defense of him, his alibi for the night." (Id. at 109). Detective Frankart identified State's Exhibits 11, 12, 13, and 14 as the letters that Dahms wrote to Thornton. (Id. at 149-150); (State's Ex. 11, 12, 13, 14). Detective Frankart read portions of those letters for the jury:

"Sarah, my sister is mad and saying she's going to call the lady at your office and call [the Housing Authority] on you. She is mad because I stayed that night but now you won't help me." * * *
"I need you to write that statement, Sarah. If you don't write it, my lawyer said they are going to charge me. If that happens, then he's going to have to make you come to court, like, five times and then you also have to come to trial. And if you don't show up to court all those times, the judge will have you arrested.
Do you have a ride to court? Hell no, you don't. It would be a lot better if you would just write the statement and turn it in, because then I won't even get ...

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