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State v. Carroll

Court of Appeals of Ohio, Eleventh District, Ashtabula

May 14, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
GREGORY ALLEN CARROLL, a.k.a. GREGERY A. CARROLL, Defendant-Appellant.

          Criminal Appeal from the Ashtabula County Court of Common Pleas, Case Nos. 2016 CR 00616, 2016 CR 00697.

          Nicholas Iarocci, Ashtabula County Prosecutor, and Shelley Pratt, Assistant Prosecutor, Ashtabula County Courthouse, (For Plaintiff-Appellee).

          Anna Markovich, (For Defendant-Appellant).

          OPINION

          COLLEEN MARY OTOOLE, J.

         {¶1} Appellant, Gregory Allen Carroll, a.k.a. Gregery A. Carroll, appeals from the May 5, 2017 judgments of the Ashtabula County Court of Common Pleas, sentencing him for robbery, theft from a person in a protected class, theft, and forgery following a bench trial. On appeal, appellant raises issues involving ineffective assistance of counsel, admissibility of evidence, and restitution. Finding no reversible error, we affirm.

         {¶2} On November 16, 2016, in Case No. 2016 CR 00616, appellant was indicted by the Ashtabula County Grand Jury on two counts: count one, robbery, a felony of the second degree, in violation of R.C. 2911.02(A)(2); and count two, theft from a person in a protected class, a felony of the fifth degree, in violation of R.C. 2913.02(A)(1) and (B)(3).

         {¶3} On December 7, 2016, in Case No. 2016 CR 00697, appellant was indicted by the Ashtabula County Grand Jury on two counts: count one, theft, a felony of the fifth degree, in violation of R.C. 2913.02(A)(1) and (B)(2); and count two, forgery, a felony of the fifth degree, in violation of R.C. 2913.31(A)(3).

         {¶4} Appellant, an indigent, was appointed counsel and pleaded not guilty to all charges upon arraignment.

         {¶5} A bench trial on both cases commenced on April 4, 2017. Appellee, the state of Ohio, submitted six exhibits and the following three witnesses testified on its behalf: Terry Foster, the victim; Jacob Ricket, a friend of Foster's; and Officer Mike Palinkas, with the Ashtabula City Police Department. Appellant did not testify and presented no witnesses.

         {¶6} Terry Foster lived at 1513 West Prospect in Ashtabula, Ohio. At times, appellant would stay at Foster's residence in a spare bedroom located on the first floor. Foster's bedroom and the only bathroom were upstairs.

          {¶7} Foster had a checking account with Key Bank. He kept his checks on the top shelf in his kitchen pantry. The checks were in open view. Foster indicated that appellant had utilized the pantry during his stays.

         {¶8} In September 2014, Foster opened the pantry to get new checks. He noticed some were missing. Foster went to the bank and obtained copies of the missing checks. There were four checks, all written to appellant, which totaled $740. Foster testified he had never written checks to appellant, never went with appellant to the bank to give him money, and never owed appellant any money.

         {¶9} The first check, No. 1371, was written out to appellant for $200 and Foster testified it was not his signature on the check. (State's Exhibit A). The second check, No. 1376, was written out to appellant for $140 and Foster testified it was not his signature on the check. (State's Exhibit B). The third check, No. 1377, was written out to appellant for $200 and Foster testified it was not his signature on the check. (State's Exhibit C). The fourth check, No. 1378, was written out to appellant for $200 and Foster testified it was not his signature on the check. (State's Exhibit D).

         {¶10} Foster reported the missing checks to the police. Foster had no contact with appellant for several months. Appellant later returned to Foster's house claiming he was homeless. Foster let him inside. Appellant stayed at Foster's home for about a week. Appellant never said anything about the four checks. Foster did not follow up with the police regarding the checks because he felt sorry for appellant.

         {¶11} Thereafter, on October 7, 2016, Foster was home with his friend, Jacob Ricket. They heard people yelling in the backyard. Foster looked out the window and saw appellant and his girlfriend. Foster told appellant to leave. Appellant asked to use the bathroom. Foster permitted appellant, waited awhile, then followed him upstairs.

         {¶12} Foster saw appellant in his bedroom holding Foster's wallet, which had about $40 to $60, and asked him what he was doing. Foster said appellant stuck something in his back pocket. Foster told appellant to give him his money back and appellant grabbed his wrists. Foster began yelling.

         {¶13} Ricket heard the yelling and went upstairs. Ricket observed appellant with Foster's wallet and money in hand. Appellant threw the wallet and money, a crumpled $20 bill, on the bed. Appellant grabbed Foster, moved him out of the way, and left with a bag of clothing from his previous visits. Ricket saw money in appellant's back pocket.

         {¶14} After appellant left the residence, Ricket confronted him in the driveway and asked to see his pockets. Appellant partially pulled out his pockets. Although Ricket did not see any money at that time, he testified that it could have been there and that appellant did not empty every pocket.

         {¶15} Officer Palinkas was dispatched to Foster's residence in reference to an assault and theft. He observed fresh injuries on Foster's arm. Officer Palinkas later located appellant at Circle K in Geneva, about a quarter of a mile or less from Foster's home. Appellant was sweating profusely and slightly out of breath. Appellant was hunched over a garbage can in an apparent attempt to catch his breath. Appellant was instantly argumentative and claimed he did nothing wrong. ...


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