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State v. Dotson

Court of Appeals of Ohio, Eleventh District, Trumbull

June 17, 2019

STATE OF OHIO, Plaintiff-Appellee/ Cross-Appellant,
BRYAN MITCHELL DOTSON, Defendant-Appellant/ Cross-Appellee.

          Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2016 CR 00368.

          Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee/Cross-Appellant).

          Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-Appellant/Cross-Appellee).


          TIMOTHY P. CANNON, J.

         {¶1} The Trumbull County Court of Common Pleas issued an entry on October 6, 2017, sentencing Bryan Mitchell Dotson to a term of 60 months in prison following a jury trial. Dotson filed an appeal from this entry, and the state of Ohio filed a cross-appeal. The issues on appeal are the sufficiency and weight of the evidence, as well as the merger of seven counts of grand theft of a motor vehicle. The judgment is affirmed in part and reversed in part.

         {¶2} The Trumbull County Grand Jury returned a nine-count indictment against appellant on August 17, 2016, charging him with seven counts of Grand Theft of a Motor Vehicle, fourth-degree felonies in violation of R.C. 2913.02(A)(1) & (B)(5) (Counts 1-7), and two counts of Breaking and Entering, fifth-degree felonies in violation of R.C. 2911.13(A) & (C) (Counts 8-9). The indictment was later amended to reflect that Counts 6 and 7 are Attempted Grand Theft of a Motor Vehicle, fifth-degree felonies, in violation of R.C. 2913.02(A)(1) & (B)(5).

         {¶3} This case emanates from a breaking and entering and theft that occurred in March 2014 at Johnny K's Powersports in Niles, Ohio. Johnny K's is owned by John Kalogeras. The business sells ATVs, snowmobiles, side-by-side off-roading vehicles, motorcycles, jet skis, and the like. The business had recently expanded into the building next door, previously owned by Pace Pontiac ("Pace Building"). The Pace Building was undergoing renovations and used for storing vehicles; it was not yet open to the public.

         {¶4} In the early morning of March 12, 2014, sometime between 4:30 and 5:30 a.m., Mr. Kalogeras received a text message from the owner of a business located across the street from Johnny K's, informing him that the glass door of the Pace Building was shattered and that a red side-by-side vehicle was in the roadway. Officers from the Niles City Police Department first responded to Johnny K's at 5:20 a.m. Mr. Kalogeras arrived at the Pace Building and met with the officers; he confirmed the side-by-side vehicle on the roadway belonged to his business. He also confirmed that five vehicles were missing from the building-two street motorcycles, one ATV with a plow, and two side-by-side vehicles-and two other motorcycles had been damaged in an apparent effort to "hotwire" them.

         {¶5} Around 7:30 a.m., Detective Jim Robbins reported to Johnny K's. He collected a coffee cup that he was told did not belong to Mr. Kalogeras or his employees and sent it for DNA testing. A few months later, CODIS (the Combined DNA Index System for incarcerated individuals) registered a presumptive match to the DNA found on the coffee cup: Jonathan Brown.

         {¶6} Larry Skaggs, a trooper and investigator with the Ohio State Highway Patrol, was currently handling the case. When Trooper Skaggs received the DNA information, he interviewed Brown, who had been arrested on other charges, at the Girard Police Department. Brown agreed to cooperate with the investigation. He provided Trooper Skaggs with information about the stolen vehicles that was consistent with the description received from Johnny K's.

         {¶7} Brown was indicted on charges related to the break-in. Pursuant to a plea agreement, he pled guilty to an amended indictment of four counts of Grand Theft of a Motor Vehicle and one count of Breaking and Entering. Brown was sentenced to 12 months in prison concurrent with the remainder of a sentence he was serving on an unrelated conviction.

         {¶8} At appellant's trial, Brown testified he has known appellant since 2005 or 2006. They fell out of touch for a period of time, and they began spending time together again in January 2014. Brown testified that he and appellant sometimes spent time at the Niles residence of Stephanie Collins, with whom appellant was romantically involved.

          {¶9} Stephanie was also interviewed by Trooper Skaggs and provided a written statement, after consulting with a lawyer, in which she provided information that was consistent with other information received during the investigation. Stephanie was not charged in connection with this case.

         {¶10} Brown testified it was appellant's idea to break into Johnny K's because "it was an easy place to get." A day or two prior to the break-in, Brown went to Johnny K's to see if there was anything there that could be stolen. He entered the Pace Building through an open door, although he knew the shop was under construction and not open for business. Brown walked around the Pace Building until he was told by someone that the area was closed. Before he left, Brown was able to take keys from some of the vehicles and later gave them to appellant. Brown also admitted he left a coffee cup at Johnny K's on that day. Mr. Kalogeras corroborated that a day or two prior to the break-in, he noticed an individual in the Pace Building who immediately left when confronted.

         {¶11} A couple days later, on March 11, 2014, Brown and two other men were at Fox's Auto with appellant, working on vehicles. Appellant was employed at Fox's Auto, and Brown worked there from time to time. A metal flake became lodged in appellant's eye while he was working on a vehicle.

         {¶12} Brown testified that one of the men in the shop drove appellant to a hospital in Austintown, Ohio, and that he followed in his own car with Dan Gilliland. They arrived at the hospital around 6:00 p.m. and waited in the waiting room for many hours. Brown testified that he watched medical staff attempt to remove the metal flake with a mechanical device, but they were unsuccessful. Brown stated they all left the hospital sometime after midnight on March 12, 2014, and returned to Fox's Auto. Mr. Gilliland rode with Brown, and someone else drove appellant.

         {¶13} Brown testified that Quinton Grundy (also known as "Q"), a friend of appellant, also arrived at Fox's Auto. Brown stated that, after the other men left the shop, he, Grundy, and appellant decided to try and steal the vehicles from Johnny K's with the keys Brown had taken from the Pace Building. The trio left the shop and went to Stephanie's house.

         {¶14} Stephanie testified, however, that she had picked up appellant from Fox's Auto around 10:30 p.m. and drove him to the hospital with Grundy. The three of them arrived around 11:00 p.m. Brown was also at the hospital, and appellant's mother was there for a short time. Stephanie stated they did not have to wait long for assistance. She watched the medical staff unsuccessfully attempt to remove the metal flake from appellant's eye with a mechanical device; they "had to patch him up and * * * he was supposed to have surgery done for it." Stephanie testified they were at the hospital for approximately two hours, then she took appellant and Grundy back to Fox's Auto. Candace Lightner, appellant's ex-girlfriend and mother of his child, was at Fox's Auto, and she was going to take appellant to the home they shared. However, not long after, around 1:00 or 2:00 a.m., appellant, Grundy, and Brown arrived at Stephanie's house.

         {¶15} At Stephanie's residence, the three men discussed their plan one more time. Brown testified that Stephanie was in the room during the discussion, but she was not involved with the planning or with the break-in. Stephanie testified that she heard the men discuss that Brown had found a key in an ignition at Johnny K's and that they were going to go look around the building and see what was there.

         {¶16} Brown testified that the men retrieved pry bars and tools from appellant's vehicle and then left on foot towards Johnny K's, which was not far from Stephanie's house. Stephanie stated she fell asleep after they left and does not remember them returning to her house.

         {¶17} Brown testified they walked for about 20 minutes through backyards, a creek, and up a hill to get to Johnny K's. They observed the building from across a side street and then walked to a nearby vacant house and garage to come up with the next part of the plan. Appellant and Grundy crossed the street and checked the door to Johnny K's, then they all waited approximately 20 minutes in case a silent alarm had been tripped. The three men then approached the Pace Building together, and appellant and Grundy began to pry at the side door. The glass window fell out of the door and shattered on the ground. They unlocked the door and entered the building.

         {¶18} They were able to match the stolen keys to an ATV with a plow and two side-by-side vehicles. Appellant and Grundy initially left the building with "hotwired" motorcycles, and Brown took a side-by-side vehicle that broke down on the side of the road. Appellant returned and left with the ATV; he picked up Brown. Grundy returned and left with a side-by-side vehicle. The vehicles were driven back to Stephanie's house. Brown testified that "[t]hen we got dropped back off across the street and went in for the next one." He did not state who dropped them off, nor was he asked. The trio unsuccessfully attempted to "hotwire" two more motorcycles, damaging them in the process. Brown took another side-by-side vehicle, and they all returned to Stephanie's house. The five vehicles were parked along the side of the house, where appellant instructed the group to conceal them with tarps. Brown stated all this activity took a couple of hours.

         {¶19} Stephanie testified she went to work the next morning, unaware of the stolen vehicles at her house. Her mother called her at work, and as a result, Stephanie called appellant and demanded he remove "the stuff from her backyard. Brown testified that appellant instructed him to return to Stephanie's house to check the tarps and watch the vehicles because some of the neighbors had become suspicious and were complaining.

         {¶20} When Stephanie arrived home around 6:00 p.m., Brown was still there. She did not go near the tarps that were still in her backyard. Appellant and Grundy arrived later with a small moving truck. As they were removing the vehicles from her property, Stephanie noticed two motorcycles, two utility vehicles, and an ATV with a plow. She stated they took the vehicles to Fox's Auto in multiple trips, and she followed them in her car on the last trip. Stephanie also testified that appellant told her he had initially offered Brown $1, 500.00 for the job, but that he was only going to give him $300.00.

         {¶21} Brown testified that the first vehicle transported from Stephanie's to Fox's Auto was the side-by-side he successfully took from Johnny K's. Brown stated he was supposed to receive $3, 000.00 for the vehicle, but the owner of Fox's Auto only left him $300.00, so he left the shop before the side-by-side was even unloaded. Brown stated he was unaware what happened to the rest of the vehicles: "[It] was a dead deal after that point. Basically, I got burned on it so I didn't give a crap about it."

         {¶22} Brown later agreed to wear a wire that recorded audio and video during a conversation with appellant. The conversation took place on August 14, 2014, at the home appellant shared with Candace and their child. The audio is largely unintelligible. Brown testified, however, that he had inquired whether appellant was still in possession of any of the vehicles, and appellant had stated the owner of Fox's Auto was still in possession of the ATV with a plow. Appellant also told Brown that he heard Grundy had been talking about their involvement with the break-in. Grundy was later indicted in relation to this case, as well.

         {¶23} Trooper Skaggs spoke with the owner of Fox's Auto; appellant's brother Robert Dotson; and a few other individuals. The police eventually recovered the stolen ATV from a third party. Trooper Skaggs also testified that appellant had called him, menacing and agitated that Trooper Skaggs was "harassing" appellant's friends regarding the investigation. Recordings of these phone calls were played for the jury. Appellant also followed Trooper Skaggs in his vehicle and confronted him while stopped at a traffic light.

         {¶24} Candace and Deborah Dotson, appellant's mother, both testified on appellant's behalf. Both stated they were at the hospital with appellant the night of March 11, 2014, into the early morning of March 12, 2014. Both testified that Stephanie and Grundy were in the hospital room when they arrived, but Stephanie left a little while later. Brown was not there. Both acknowledged that appellant returned to Fox's Auto after he received medical treatment for the metal shard in his eye. They both testified, however, that when he left Fox's Auto, appellant went home to the residence he shared with Candace and did not leave during the night. Both testified that appellant's eye was swollen, he was wearing a patch, he was medicated for pain, and he needed assistance walking. Candace also testified that she thought Stephanie was Brown's girlfriend, not appellant's girlfriend.

         {¶25} The defense also called Catherine Reble, R.N., who testified that appellant reported to the emergency room on March 11, 2014, at 11:39 p.m.; she was assigned as his nurse at 11:49 p.m. After the procedure was performed on appellant's eye, an eye patch was applied at 1:06 a.m. She affirmed that appellant's medical chart does not indicate his eye was swollen shut or swelling, and his pain level was a "4" on a 0 to 10 scale. Nurse Reble testified appellant was given a dose of narcotic pain medication and discharged at 1:25 a.m. on March 12, 2014. He was ambulatory at the time of discharge.

         {¶26} Mr. Kalogeras filed a theft report through his insurance company and paid deductibles for each vehicle. The vehicles were never returned to Mr. Kalogeras, and the deductibles were never refunded. A letter from Mr. Kalogeras' insurance company was offered into evidence, outlining the deductible for each vehicle. The letter provides, in part:

Following up to our conversation, I am outlining the claims that were paid from the incident that occurred when your business was broken into. I have also noted the claims which were under the deductible, but your business still sustained a loss. This claim was for:
Theft of five vehicles, theft of three sets of keys, and repairs to two vandalized vehicles. For each vehicle, your business had a deductible of $1, 000.00.

         {¶27} The jury was instructed, inter alia, on complicity, and appellant was found guilty of all charges on August 17, 2017.

         {¶28} The trial court held a sentencing hearing on September 18, 2017. Both defense counsel and the prosecution submitted sentencing memoranda addressing the issue of merger. Appellant requested merger of the seven theft offenses and merger of the two breaking and entering offenses, with an aggregate prison sentence of one year. The prosecution argued none of the charges should merge and requested a prison sentence of 126 months.

         {¶29} Appellant was sentenced to a prison term of 18 months on Counts 1, 2, 3, 4, and 5; and 12 months on Counts 6, 7, 8, and 9. The trial court's entry states that Counts 1 and 2 merge for sentencing purposes; Counts 3, 4, 5, 6, and 7 merge for sentencing purposes; and Counts 8 and 9 do not merge with each other or any other count. The trial court ordered the merged sentence on Counts 1 and 2 to run consecutive to the merged sentence on Counts 3, 4, 5, 6, and 7, which is to run consecutive to the sentence on Count 8, which is to run consecutive to the sentence on Count 9. Appellant was therefore ordered to serve a total term of imprisonment of 60 months. He was also ordered to pay restitution in the amount of $6, 000.00 and the costs of prosecution.

         {¶30} The entry on sentence was journalized on October 6, 2017, from which both appellant and the state of Ohio have appealed. Appellant ...

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