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State v. Chudzinski

Court of Appeals of Ohio, Sixth District, Ottawa

January 5, 2018

State of Ohio Appellee
Corby L. Chudzinski Appellant

         Trial Court No. 16CR057

          James J. VanEerten, Ottawa County Prosecuting Attorney, and Barbara Galle Rivas, Assistant Prosecuting Attorney, for appellee.

          Kristopher K. Hill and Thomas J. DeBacco, for appellant.


          PIETRYKOWSKI, J.

         {¶ 1} Appellant, Corby Chudzinski, appeals the judgment of the Ottawa County Court of Common Pleas, following a jury trial, convicting him of burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree, and theft from an elderly person in violation of R.C. 2913.02(A)(1) and (B)(3), a felony of the second degree, and sentencing him to serve six years in prison. For the reasons that follow, we affirm.

         I. Facts and Procedural Background

         {¶ 2} Based upon events that occurred on or around February 12-15, 2016, the Ottawa County Grand Jury indicted appellant on the counts of burglary and theft from an elderly person. Appellant entered an initial plea of not guilty. Thereafter, a plea deal was offered to appellant, which he rejected. The matter then proceeded to a jury trial.

         {¶ 3} At the trial, the testimony revealed that a couple of years earlier, appellant had been employed to paint the victim's house. The victim is a 76-year-old widower. The victim took interest in appellant because he was from the same town as her late husband, and they established a relationship where the victim provided appellant with some of her late husband's clothing. The victim then did not see appellant again for approximately one year, until she saw him in the alley next to her house. The victim testified that appellant had a woman with him, and he explained that he was showing the woman the house that he had painted the prior year. Several months later, on February 1, 2016, the victim contacted appellant and offered him several pairs of pants, which appellant accepted. On Friday, February 12, 2016, the victim again contacted appellant and offered him more clothes. That afternoon, appellant met the victim at her place of employment, and took the clothes and put them in his stepfather's truck.

         {¶ 4} The victim testified that when she returned home on February 12, 2016, she noticed that the back door was not locked or shut. The victim testified that she did not think anything of the unsecured door because nothing in her house was disturbed. However, on Monday, February 15, 2016, the victim noticed for the first time that her jewelry bag was missing. When she realized that it was missing, she recalled that she had left the bag open on her bed on February 12, 2016, and it was gone when she returned home that day. She described the bag as a black satchel, and testified that it contained a number of diamonds and other jewelry, including a presidential Rolex watch. She testified that the missing jewelry conservatively had a value of $130, 000.

         {¶ 5} Appellant's stepfather also testified for the state. He testified that on February 12, 2016, appellant contacted him and asked him for a ride to go pick up some clothing. Appellant then directed his stepfather to the victim's house. Once at the house, appellant's stepfather waited in the truck while appellant went around the back of the house. After about ten minutes, appellant returned carrying a small black or dark blue bag, which appellant's stepfather had not noticed when appellant initially left the truck. Appellant threw the bag behind the seat in the truck, and then they drove to pick up the clothes. Appellant's stepfather had no knowledge of the contents of the bag.

         {¶ 6} Finally, the state played a recording of an interview appellant had with the police. The detective testified that there were several inconsistencies in appellant's various statements, and that appellant's story went from never being at the victim's residence, to stopping by the residence to look at the fence. During this interview, appellant claimed to have been carrying a sweatshirt when he returned to the truck. In a subsequent voicemail left for the detective shortly after the initial interview, appellant claimed to have had a fanny pack when he returned to the truck. A week later, appellant informed the detective that he was carrying a black dope bag in which he kept his drug paraphernalia, and that he had gone behind the victim's house to do drugs.

         {¶ 7} Upon hearing the testimony and receiving the evidence, the jury retired to deliberate. The next morning, the jury returned to continue their deliberations. However one of the jurors was unavailable due to a family medical emergency, so the second alternate was called upon, and the trial court instructed the jury that they must begin their deliberations anew. Notably, the first alternate had already been placed on the jury after the first day of testimony when one of the jurors informed the court that he would be unable to continue with his service. Neither party objected to either the first or the second juror substitutions. Ultimately, the jury returned with a verdict finding appellant guilty of both counts in the indictment.

         {¶ 8} Following the jury's verdict, but before sentencing, appellant moved for a new trial pursuant to Crim.R. 33. Submitted with his motion, appellant included an affidavit in which he testified that he was promised by his defense counsel during plea negotiations that counsel would "win this case." Appellant stated that because of counsel's promise, he did not consider the plea deal that was offered by the state. Thus, appellant argued that he should be entitled to a new trial because he received ineffective assistance of counsel. In addition, appellant also argued that a new trial was warranted because of numerous irregularities in the proceedings, including the lack of competent evidence as to the value of the jewelry, the fact that a juror was allowed to leave after deliberations began, the fact that phone recordings from the police department were not turned over in a timely manner in discovery, and the fact that a continuance was not granted when new evidence was revealed on the day of trial.

         {¶ 9} On February 23 and 24, 2017, the trial court held a hearing on appellant's motion for a new trial. At the hearing, appellant testified that his former defense counsel did not inform him of the terms of the plea deal. Instead, counsel stated that on a scale of 1 to 10, with 10 being very confident in winning the case, counsel was at a 10-plus, stating three times that she "would win this case." Appellant's former defense counsel also testified at the hearing. She testified that she did, in fact, explain the ...

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