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State v. Bishop

Court of Appeals of Ohio, Seventh District, Jefferson

June 28, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES K. BISHOP, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 17-CR-143

          Affirmed. Atty. Jane M. Hanlin, Jefferson County Prosecutor and Atty. Edward L. Littlejohn, Jr., Assistant Prosecuting Attorney, Jefferson County Justice Center, for Plaintiff-Appellee.

          Atty. Scott C. Essad, for Defendant-Appellant.

          BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, P.J.

         {¶1} Appellant James K. Bishop appeals the January 18, 2018 judgment entry convicting him of various offenses stemming from a burglary. Appellant argues that his sentence is disproportionate to defendants who have committed similar crimes. He also argues that the trial court's imposition of consecutive sentences is contrary to law. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} Appellant was employed by Tom Brown Construction, owned by Mr. Brown, in early November of 2016. (5/14/18 Trial Tr., p. 108.) The company was hired to complete a project inside the victim's garage. On the first day of construction, Brown purchased a tool that belonged to the victim's recently deceased husband for $100. Brown gave the victim five twenty-dollar bills as payment. While the victim and Brown were completing the transaction, Appellant surprised the victim by exiting the house from the kitchen, as she was unaware that he had been inside her home. (5/14/18 Trial Tr., p. 135.) At some point, Brown left the job, leaving Appellant and another employee at the house to complete the work.

         {¶3} During construction, Appellant and the other employee asked the victim to use her restroom. She granted them permission. The men used the restroom and returned to the garage to continue their work. Sometime thereafter, the victim went into her garage to check on the progress of the work, but did not see Appellant. The other employee informed her that Appellant had gone back inside to use the restroom. There are only two doors into the victim's house: one in the kitchen leading to a patio and one in the front of the house leading to the front yard. As she was inquiring, Appellant suddenly exited the house through the kitchen door. The victim thought this was odd. She knew he used the front door to enter the house, because she had just left her kitchen and did not see him enter through the kitchen. The victim said she was upset that Appellant had entered her house without her permission, but did not address this issue with him. Sometime thereafter, the victim again checked on the work and did not see Appellant. The other employee explained that he had, once again, gone to use the bathroom. Appellant returned to the garage shortly thereafter.

         {¶4} After Appellant and the other employee left for the day, the victim realized she could not find the money Brown had given her for the tool. When she entered her bedroom, she noticed that her jewelry box was open and its contents had been removed. She went into her closet to check a lock box that contained her deceased husband's jewelry and found that the box had been pried open and its contents had been removed. The victim called Brown and gave him this information.

         {¶5} At first, Brown could not make contact with Appellant, who did not go to work at the victim's house the next day. Eventually Appellant contacted Brown to ask for his paycheck. Brown accused Appellant of taking the items, and he denied these allegations. Brown persisted, informing Appellant that the stolen jewelry was worth more than $17, 000. Appellant responded that the victim was exaggerating the value of the items. Brown construed this statement by Appellant as a confession.

         {¶6} Officer Jack Henderson of the Cross Creek Police Department was assigned to investigate. Initially, he, too, could not locate Appellant. After several days passed, Officer Henderson contacted Appellant by phone and learned that he was in Michigan working as a boilermaker. On investigation, Officer Henderson discovered that Appellant had pawned several items in East Liverpool and Toledo that matched the description of the victim's missing items. Appellant appears in the pawn shops' videos and a copy of his driver's license was attached to their receipts.

         {¶7} On November 8, 2017, a grand jury indicted Appellant on: one count of theft, a felony of the fourth degree in violation of R.C. 2913.02(A(1), (B)(2); one count of receiving stolen property, a felony of the fifth degree in violation of R.C. 2913.51(A), (C); one count of burglary, a felony of the second degree in violation of R.C. 2911.12(A)(1), (D); and one count of safe cracking, a felony of the fourth degree in violation of R.C. 2911.31(A), (B).

         {¶8} Jury trial commenced on January 9, 2018. Appellant was found guilty on all charges, however, the jury determined that the state did not prove the value of the jewelry was in excess of $17, 000. Thus, the conviction for theft was reduced from a felony of the fourth degree to a felony of the fifth degree.

         {¶9} On January 18, 2018, the trial court sentenced Appellant to one year of incarceration on the theft conviction, one year for receiving stolen property, eighteen months for safecracking, and eight years for burglary. The trial court ordered the sentences for theft and receiving stolen property to run concurrently with one another and concurrent with the safecracking and burglary sentences. The safecracking and burglary sentences were ordered to run consecutively. Appellant's aggregate total sentence was nine and one half years. A mandatory three-year postrelease control term was imposed and the court credited Appellant with 110 days of time served. This timely appeal followed.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT, IN CONTRAVENTION TO THE OHIO REVISED CODE AND CASE LAW, ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES.

         {¶10} We note that Appellant raises one assignment of error addressing the trial court's imposition of consecutive sentences. However, within this assignment of error Appellant also argues that the trial court improperly considered facts related to the victim during sentencing and erroneously determined that he lacked remorse. At oral argument, Appellant focused his argument on whether his sentence was disproportionate to what a similar defendant might receive with a less sympathetic victim. This argument attacks his sentence generally, not the imposition of consecutive sentences. For ease of understanding, Appellant's arguments are divided into general sentencing issues and consecutive sentencing issues, where they will be separately addressed.

         Sentence

         {¶11} Appellant argues that the trial court focused its analysis on the victim and found her to be sympathetic due to the recent death of her husband, her age, and that she cares for rescue dogs. Appellant urges that as the victim was not chosen because of her age or the recent death of her husband, the court should not be permitted to take those factors into consideration. Since the court used them in determining his sentence, he believes that his sentence is disproportionate to a sentence a defendant with a less sympathetic victim would receive. Appellant also contends that since he did not speak more than a few one-word statements to the trial court at sentencing and did not testify at trial, the court could not have truly determined whether he felt remorse.

         {¶12} The state responds that the record demonstrates the trial court conducted an appropriate ...


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