State v. Villani , 2014 Ohio 4182 ( 2014 )

[Cite as State v. Villani, 2014-Ohio-4182.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-12-231
: OPINION
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:
RANDY RAY VILLANI, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2013-08-1299
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant
PIPER, J.
{¶ 1} Defendant-appellant, Randy Villani, appeals his convictions and sentence in the
Butler County Court of Common Pleas, for grand theft and two counts of operating a vehicle
while under the influence (OVI).
{¶ 2} During the evening hours of August 6, 2013, Patricia Williams parked her Grand
Marquis in her driveway with the door unlocked and a spare key in the ashtray. The next
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morning, the car was gone. Williams reported her car stolen, and Deputy Jody Green of the
Butler County Sheriff's Office took Williams' statement and advised other officers to be on the
lookout for Williams' stolen car.
{¶ 3} Three days later, Sergeant Amy Mays of the Fairfield Police Department
observed Williams' stolen car traveling northbound on State Route 4. Sergeant Mays had
been patrolling the area, and had previously received information that the car was spotted in
the area of State Route 4. Sergeant Mays followed the car and observed the driver weaving,
and then saw the driver run a red light. Sergeant Mays performed a traffic stop, and
approached the driver, who was later identified as Villani. Sergeant Mays observed that
Villani had slurred speech, appeared disoriented, had the odor of an alcoholic beverage on
his person, had bloodshot and glassy eyes, and that the front of his pants were wet. When
asked about ownership of the car, Villani told Sergeant Mays that the car belonged to a
friend. Villani later changed his story, and told Sergeant Mays that he found the car running
at a bar, got into it, and drove away.
{¶ 4} Villani was arrested, and his blood alcohol content was tested. The results
indicated that Villani's blood alcohol content was .154. Villani was indicted on one count of
grand theft and two counts of OVI. Villani pled not guilty to the charges, and the matter
proceeded to a two-day jury trial.
{¶ 5} During the trial, the state offered three witnesses, including Deputy Green,
Officer Mays, and Williams. Deputy Green testified about responding to Williams' call and
taking her stolen-vehicle report. Sergeant Mays testified to her encounter with Villani and her
investigation that led to Villani's arrest. Williams testified to the damage done to her car, as
well as items that were missing from the car.
{¶ 6} During Villani's defense, he asserted that he did not steal the car because he
was staying at his mother's house at the time, and had not left her house on the night the car
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was stolen. Villani called his mother as a witness, and she testified that Villani had stayed
with her and had not left the house for any significant amount of time. She also stated that
she drove Villani to the Serenity Hall halfway house on August 9, 2013. Villani also called
Steven Price, who is a clinical operations supervisor at Serenity Hall. Price testified that
Villani checked into the facility on August 8, 2013 and stayed there until he checked himself
out of the facility in the evening hours of August 9, 2013.
{¶ 7} Villani asked the court to include a jury instruction on the lesser included
offense of unauthorized use of a vehicle. The trial court granted Villani's request, and
informed the parties that the jury instructions would include unauthorized use of a vehicle.
The trial court also granted the state's request to include special findings within the jury
instructions that would elevate the unauthorized use of a vehicle offense from a first-degree
misdemeanor to a fifth-degree felony, specific to unauthorized use of an elderly person's
vehicle, as Williams was 77 years old at the time her car was stolen.
{¶ 8} The jury found Villani guilty of the two OVI counts and of the grand theft charge.
The trial court merged the two OVI counts, and sentenced Villani to 17 months on the grand
theft charge and 180 days on the OVI charge. The trial court ordered the sentences to be
served concurrently, for an aggregate sentence of 17 months. Villani now appeals his
convictions and sentence, raising the following assignments of error. Because Villani's
second and third assignments of error are interrelated, we will address them together. Also,
for ease of discussion, we will address the assignments of error out of order.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT MR.
VILLANI.
{¶ 11} Assignment of Error No. 3:
{¶ 12} MR. VILLANI'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT
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OF THE EVIDENCE.
{¶ 13} Villani argues in his second and third assignments of error that his conviction
for grand theft was against the manifest weight of the evidence and not supported by
sufficient evidence. Villani, however, does not challenge his conviction for OVI so we will limit
our discussion to the grand theft charge.
{¶ 14} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence in order to determine whether such evidence, if
believed, would support a conviction. State v. Wilson, 12th Dist. Warren No. CA2006-01-
007, 2007-Ohio-2298. "The 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." State v. Jenks, 61 Ohio St. 3d
259 (1991), paragraph two of the syllabus, superseded on other grounds.
{¶ 15} A manifest weight challenge examines the inclination of the greater amount of
credible evidence, offered at a trial, to support one side of the issue rather than the other.
Wilson, 2007-Ohio-2298.
In determining whether a conviction is against the manifest
weight of the evidence, the court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers
the credibility of the witnesses and determines 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.
State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.
{¶ 16} While appellate review includes the responsibility to consider the credibility of
witnesses and the weight given to the evidence, "these issues are primarily matters for the
trier of fact to decide since the trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No.
CA2006-04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a
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conviction due to the manifest weight of the evidence only in extraordinary circumstances to
correct a manifest miscarriage of justice, and only when the evidence presented at trial
weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997).
{¶ 17} Villani was charged with grand theft in violation of R.C. 2913.02(A)(1), which
provides, "no person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either the property or services in any of the following
ways: (1) Without the consent of the owner or person authorized to give consent." According
to R.C. 2913.01(C)(1), deprive means to "withhold property of another permanently, or for a
period that appropriates a substantial portion of its value or use, or with purpose to restore it
only upon payment of a reward or other consideration."
{¶ 18} During the state's case-in-chief, it presented testimony from three witnesses
regarding the charges against Villani. Sergeant Mays testified that during the early morning
hours of August 7, 2013, police received a suspected drunk driver report in the area of State
Route 4. Police ran the license plate given to them by the caller, but did not pursue the
matter further until they received information that the car had been reported stolen. Sergeant
Mays testified that she had been watching for the car near the State Route 4 area, and finally
observed the stolen car during the early morning hours of August 10, 2013. Sergeant Mays
testified that she observed the car weaving and also that the driver failed to stop at a red
light. When Sergeant Mays pulled the car over, she encountered Villani.
{¶ 19} Sergeant Mays testified that Villani first told her that the car belonged to a friend
of his, then later stated that the car was left running at a bar and that he got into it and drove
away. The state played a video recorded by Sergeant Mays' cruiser camera in which Villani
can be seen and heard admitting that he took the car from the bar and that he got in it and
drove away. On cross-examination, Sergeant Mays indicated that there were no indications
of forced entry present on the outside of the car, but that stolen cars do not always bear
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signs of forced entry.
{¶ 20} The state next presented the testimony of Deputy Jody Green, who took the
report of William's stolen vehicle. Deputy Green testified that he interviewed Williams, and
entered the car's information into a police computer system to alert other officers to look for
the car.
{¶ 21} Williams also testified during the state's case-in-chief and recalled that while
she normally parked her car in her garage, she was unable to do so on the night it was stolen
because there were items being stored in the garage. Williams testified that she retrieved
clothes from the car later that night, and that she had neglected to lock the car doors after
removing the clothes from the car. Williams also stated that she keeps a key in the ashtray
of the car in case she or her daughters need to use the car on an emergency basis.
{¶ 22} Williams testified that police eventually informed her that her car had been
recovered, and that there was extensive damage to both the interior and exterior of the car.
Williams also testified that several personal items were missing from the car such as jumper
cables, hats, and a blanket. Williams testified that the car was so damaged that the
insurance company deemed the car totaled, and reimbursed her for her loss. Williams
testified that she never gave Villani permission to drive her car.
{¶ 23} Villani argues that the evidence was insufficient to demonstrate that he
committed grand theft because he presented two witnesses who testified that Villani's
whereabouts were accounted for from August 8, 2013 until August 9, 2013. Villani also
argues that the state failed to prove that he had the intent to permanently deprive Williams of
her property.
{¶ 24} Steven Price testified that he is the clinical operations supervisor at the Serenity
Hall halfway house, and that Villani arrived at Serenity Hall on August 8, 2013 at
approximately 11:25 a.m. Price also testified that Villani did not leave Serenity Hall until
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August 9, 2013 at 7:54 p.m. Price testified on cross-examination that Serenity Hall is not a
lock-down facility, and that the people who are there are not monitored "every minute of
every day." Villani next called his mother, who testified that Villani was staying with her
around the time the car was stolen, and that she took Villani to Serenity Hall on August 8,
2013. Villani's mother also testified that Villani was not gone from the house for any
significant amount of time, but also testified that her home is less than a mile away from
Williams' residence where the car was stolen.
{¶ 25} We reject Villani's argument that his convictions are against the manifest weight
of the evidence and not supported by sufficient evidence. Despite Villani's argument that he
did not have the intent to deprive Williams of her property, Villani admitted during the cruiser
camera video that he got into the car and drove it away and never argued that he had
Williams' permission to drive the vehicle. Nor did Villani assert that when he got into the car
at the bar and drove away, he did so with the intent to return the car to its rightful owner. We
do not find that the jury clearly lost its way or created a manifest miscarriage of justice. The
jury heard all of the testimony, considered the evidence, and found the state's theory of the
case and its witnesses credible and we will not disturb such a finding on appeal.
{¶ 26} Having found that Villani's convictions were supported by sufficient evidence
and were not rendered against the manifest weight of the evidence, we overrule Villani's
second and third assignments of error.
{¶ 27} Assignment of Error No. 1:
{¶ 28} THE TRIAL COURT VIOLATED APPELLANT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL BY ADMITTING
EVIDENCE OF ELEMENTS NOT PRESENTED TO THE GRAND JURY.
{¶ 29} Villani argues in his first assignment of error that the trial court erred by allowing
Williams to testify about her age and the damage done to her car.
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{¶ 30} During its case-in-chief, the state called Williams to testify about her car being
stolen. During direct examination, the state asked Williams how old she was, and over
defense counsel's objection, Williams answered that she was 77 years old. Villani also
objected to Williams' testimony about how damaged her car was and what items had been
taken from the inside of the car. On both occasions, Villani objected to the line of
questioning, arguing that such facts were not relevant to the charges, and had not been
included in the indictment specific to the grand theft charge. Villani now asserts on appeal
that the trial court's admission of Williams' testimony was a violation of his due process
rights. We disagree.
{¶ 31} Section 10, Article I of the Ohio Constitution provides that "no person shall be
held to answer for a capital, or otherwise infamous, crime, unless on presentment or
indictment of a grand jury* * *." The Ohio Supreme Court has recognized that "this provision
guarantees the accused that the essential facts constituting the offense for which he is tried
will be found in the indictment of the grand jury." State v. Evans, 122 Ohio St. 3d 381, 383,
2009-Ohio-2974, ¶ 7, quoting State v. Headley, 6 Ohio St. 3d 475, 478 (1983).
{¶ 32} Even so, R.C. 2945.74 provides that a defendant "may be found guilty of a
lesser included offense even though the lesser offense was not separately charged in the
indictment." Evans at ¶ 8. "Lesser included offenses need not be separately charged in an
indictment, because when an indictment charges a greater offense, it 'necessarily and
simultaneously charges the defendant with lesser included offenses as well.'" Id., quoting
State v. Smith, 121 Ohio St. 3d 409, 2009-Ohio-787, ¶ 14. As such, if the offense is a lesser
included offense of the charged offense, notice is presumed. State v. Scott, 12th Dist. Butler
No. CA2008-06-149, 2009-Ohio-1450, ¶ 7. "Thus, a conviction for a lesser included offense
does not deprive an offender of his constitutional right to presentment or indictment by the
grand jury, because by indicting the offender for the greater offense, the jury has necessarily
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considered each of the essential elements of the lesser offense." Evans, 2009-Ohio-2974 at
¶ 8. Moreover, a lesser included instruction also necessarily includes "any of the special,
statutory findings dictated by the evidence produced in the case." Smith, 2009-Ohio-787 at ¶
15.
{¶ 33} The record indicates that Villani was indicted for grand theft and that the jury
was given an instruction on unauthorized use of a vehicle, a violation of R.C. 2913.03(A), as
a lesser included offense of grand theft. This court and others have recognized that
unauthorized use of a vehicle is a lesser included offense of grand theft, and Villani
recognizes as much. State v. Jackson, 12th Dist. Butler No. CA2013-10-192, 2014-Ohio-
3779; State v. Vrazalica, 8th Dist. Cuyahoga No. 84412, 2005-Ohio-1164.
{¶ 34} R.C. 2913.03(A) provides, "no person shall knowingly use or operate an
aircraft, motor vehicle, motorcycle, motorboat, or other motor-propelled vehicle without the
consent of the owner or person authorized to give consent." According to R.C.
2913.03(D)(4), unauthorized use of a motor vehicle is a felony of the fifth degree if the victim
of the offense is an elderly person. R.C. 2913.03(D)(4)(a)-(d) also provides that the degree
of unauthorized use of a vehicle will change depending on the amount of damage done to the
vehicle because of the unauthorized use.
{¶ 35} While the jury found Villani guilty of the grand theft charge, rather than the
lesser included offense of unauthorized use of a vehicle, the trial court properly admitted
evidence that went to the elements of unauthorized use of a vehicle and its aggravating
factors specific to Williams being an elderly victim or the amount of damage done to her car.
{¶ 36} Although Villani argues that Williams' age and damage to the car were facts not
included in the indictment, Villani was placed on notice that the state would be offering
evidence as to the lesser included charge of unauthorized use of a vehicle, a charge that
Villani himself asked to be included in the jury instructions. The indicted charge of grand
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theft necessarily included all of the elements of unauthorized use of a vehicle, and the
evidence produced at trial was specific to the special statutory findings used to determine the
criminal culpability Villani would have had if the jury had found him guilty of unauthorized use
of a vehicle.
{¶ 37} The trial court properly admitted the evidence regarding unauthorized use of a
vehicle, and none of Villani's rights were violated by the admission of evidence of Williams'
age or the damage to her car. As such, Villani's first assignment of error is overruled.
{¶ 38} Judgment affirmed.
RINGLAND, P.J., and S. POWELL, J., concur.
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