State v. Dahms , 2017 Ohio 4221 ( 2017 )

[Cite as State v. Dahms, 2017-Ohio-4221.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-16-16
v.
JEFFREY B. DAHMS, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 15-CR-0163
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: June 12, 2017
APPEARANCES:
Jennifer Kahler for Appellant
Stephanie J. Reed for Appellee
Case No. 13-16-16
PRESTON, P.J.
{¶1} Defendant-appellant, Jeffrey B. Dahms (“Dahms”), appeals the May 6,
2016 judgment entry of sentence of the Seneca County Court of Common Pleas.
For the reasons that follow, we affirm in part, and reverse in part.
{¶2} This case stems from a break-in at a Subway restaurant located in
Fostoria, Ohio around 1:52 a.m. on April 21, 2015 in which an object was thrown
through the restaurant’s window and a cash drawer was stolen. Law enforcement
learned from Kira Harrold (“Harrold”), one of Dahms’s girlfriends, that Dahms was
the person who committed the break-in. Around the time of the break-in, Dahms
was known to stay at the home of his sister, Teresa Brown (“Teresa”), the home of
his friend, Sarah Thornton (“Thornton”) in Findlay, Ohio, or with other friends at
Nye’s Trailer Park in Fostoria, Ohio. The Subway restaurant is located near Nye’s
Trailer Park. After Dahms learned that he was suspected of the break-in, he called
Thornton numerous times and wrote her several letters requesting that she provide
law enforcement with an alibi for him—namely, to tell law enforcement that Dahms
was at her residence the night of April 20-21, 2015. To secure her statement, Dahms
not only promised to repay her $500 that Thornton loaned him, but Dahms also
threatened to turn Thornton into the Hancock County Metropolitan Housing
Authority (“Housing Authority”) for violating the terms of her subsidized-housing
lease.
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{¶3} On August 5, 2015, the Seneca County Grand Jury indicted Dahms on
four counts, including: Count One of breaking and entering in violation of R.C.
2911.13(A), (C), a fifth-degree felony; Count Two of bribery in violation of R.C.
2921.02(C), (G), a third-degree felony; Count Three of intimidation of a witness in
a criminal case in violation of R.C. 2921.04(B)(2), (D), a third-degree felony; and
Count Four of attempted complicity to tampering with evidence in violation of R.C.
2923.02(A), (E)(1), 2923.03(A)(1), (F), and 2921.12(A)(1), (B), a fourth-degree
felony. (Doc. No. 1).
{¶4} On August 14, 2015, Dahms appeared for arraignment and entered
pleas of not guilty. (Doc. No. 7). On October 2, 2015, Dahms filed a motion for
relief from “Prejudicial Joinder,” which he withdrew on October 13, 2015. (Doc.
Nos. 22, 34). Also on October 13, 2015, Dahms filed a motion to continue trial,
which the trial court granted. (Doc. Nos. 35, 37). On November 24, 2015, Dahms
filed a motion for “Supplemental Discovery” requesting an evidentiary hearing.
(Doc. No. 43). On November 30, 2015, Dahms filed a motion to continue trial,
which the trial court granted. (Doc. Nos. 45, 47).
{¶5} That same day, Dahms filed a motion for “a Pre-Trial Copy of the
Transcript of the Grand Jury Proceedings.” (Doc. No. 44). On December 3, 2015,
the State filed a memorandum in opposition to Dahms’s motion for “a Pre-Trial
Copy of the Transcript of the Grand Jury Proceedings.” (Doc. No. 48). After a
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hearing on December 4, 2015, the trial court granted Dahms’s motion for
supplemental discovery, scheduled an evidentiary hearing for December 17, 2015,
and took under advisement Dahms’s request for a copy of the transcript for the grand
jury proceedings. (Doc. Nos. 50, 51). On December 9, 2015, the trial court denied
Dahms’s request for a copy of the transcript of the grand jury proceedings. (Doc.
No. 53). An evidentiary hearing was held on December 17, 2015. (Doc. No. 56);
(Dec. 17, 2015 Tr. at 1).
{¶6} The case proceeded to a jury trial on April 26-29, 2016. (Doc. No. 85).
The jury found Dahms guilty as to the counts in the indictment. (Doc. Nos. 85, 86);
(Apr. 30, 2016 Tr. at 2-3). On May 6, 2016, the trial court sentenced Dahms to 12
months in prison on Count One, 36 months in prison on Count Two, 36 months in
prison on Count Three, and 18 months in prison on Count Four, and ordered that
Dahms serve the terms consecutively for an aggregate sentence of 102 months.
(Doc. No. 89).
{¶7} On May 25, 2016, Dahms filed his notice of appeal. (Doc. No. 93). He
raises five assignments of error for our review. For ease of our discussion, we will
address Dahms’s first and second assignments of error together, followed by his
third, fourth, and fifth assignments of error.
Assignment of Error No. I
The State failed to support Appellant’s convictions for Bribery
and Intimidation of a Witness with legally sufficient evidence.
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Assignment of Error No. II
Appellant’s convictions fell against the manifest weight of the
evidence.
{¶8} In his first assignment of error, Dahms argues that his bribery and
intimidation-of-a-witness-in-a-criminal-case convictions are based on insufficient
evidence.1 In his second assignment of error, Dahms argues that his bribery,
intimidation-of-a-witness-in-a-criminal-case, breaking-and-entering, and
attempted-complicity-to-tampering-with-evidence convictions are against the
manifest weight of the evidence.
{¶9} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St. 3d 380, 389
(1997). As such, we address each legal concept individually.
{¶10} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St. 3d 89 (1997). Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
1
Dahms does not challenge the sufficiency of the evidence supporting his other convictions.
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favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App. 3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
{¶11} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] 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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St. 2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
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conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, ¶ 119.
{¶12} At trial, the State offered the testimony of Kira, who testified that she
was sleeping at her sister’s, Kady Harrold (“Kady”), house the night of April 20-21,
2015. (Apr. 26, 2016 Tr., Vol. II, at 160-161). According to Kira, she was woken
early that morning by Dahms, who was her boyfriend at the time. (Id. at 161). Kira
testified that Dahms told her that “he threw a brick through Subway’s window,” and
that Dahms was holding “a wad of cash and a bag full of change.” (Id. at 164-165).
Kira stated that Dahms also told Kady and Kady’s boyfriend, Andy, about what he
had done. (Id. at 165).
{¶13} According to Kira, she revealed to law enforcement that Dahms was
the person who committed the Subway restaurant break-in because she was mad at
him since they “had gotten into it and [she] went to the hospital and spoke with the
officer. And it was just, the truth needed to come out. [Dahms] should be punished
for what he done [sic].” (Id. at 166-167). Kira provided law enforcement with a
written statement reflecting that Dahms committed the Subway restaurant break-in.
(Id. at 167). Kira testified that Dahms called her “a snitch.” (Id.). She further
testified that she received phone calls and letters from Dahms asking her to recant
her statement to law enforcement. (Id. at 169-170). (See also State’s Exs. 8, 9).
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Kira identified State’s Exhibit 8 as those letters and read a portion of the letters for
the jury, and identified State’s Exhibit 9 as those phone calls, which were played, in
part, for the jury. (Apr. 26, 2016 Tr., Vol. II, at 169-175); (See also State’s Exs. 8,
9). Kira did not agree to change her statement “[b]ecause it’s the truth.” (Apr. 26,
2016 Tr., Vol. II, at 177).
{¶14} On cross-examination, Kira testified that she alleged in February 2015
to law enforcement that Dahms assaulted her. (Id. at 178). Kira testified that she
went to the hospital in April 2015 after Dahms “drug [her] down the street with a
car” but did not pursue charges against Dahms. (Id. at 180-181).
{¶15} On re-direct examination, Kira testified that she knew specific details
regarding the Subway restaurant break-in, which she reported to Detective Shilo
Frankart (“Detective Frankart”) of the Fostoria Police Department, because Dahms
“told” her those details. (Id. at 182-183).
{¶16} On re-cross examination, Kira testified that she could have learned
those details from someone other than Dahms, but maintained that she heard the
details of the break-in from him. (Id. at 183-184).
{¶17} Next, Kady testified that Dahms told her that “he broke into Subway.”
(Id. at 184-185). She testified that Dahms was at her house “shortly after” the break-
in. (Id. at 185). On cross-examination, Kady clarified that Dahms confessed about
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the break-in when she “was just waking up.” (Id. at 190-191). Kady stated Andy
and Kira were also present. (Id. at 191).
{¶18} Richard Ray Evans (“Evans”) testified that he was with Dahms before
the break-in and recalled Dahms asking him if he wanted to “hit a lick,” meaning
“steal some money.” (Id. at 194-196). Evans declined Dahms’s offer, Dahms left,
and Evans again saw Dahms at 1:30 in the morning “[c]arrying a safe box.” (Id. at
196-197). According to Evans, Dahms told him that he got the “safe box” from the
Subway restaurant. (Id. at 197).
{¶19} Evans testified that he recalled a “gray with a blue skull” hooded
sweatshirt belonging to Dahms in Dahms’s vehicle, which Evans took possession
of after Dahms was arrested. (Id. at 199). According to Evans, he “wore [the
hooded sweatshirt] to the mud bogs one day” and that it is “still out at the mud
bogs.” (Id.). Evans testified that Dahms told him where he hid the “safe box” at
Nye’s Trailer Park. (Id. at 206).
{¶20} Evans identified State’s Exhibit 10 as recordings of phone calls that
he received from Dahms, which were played for the jury. (Id. at 200-204); (State’s
Ex. 10). In those phone calls, Dahms can be heard telling Evans to “take that trash
out and fucking get rid of all the junk in my room,” “get rid of that trash,” and to
“[g]et rid of that, bro.” (Apr. 26, 2016 Tr., Vol. II, at 202-204); (State’s Ex. 10).
According to Evans, Dahms was referring to “[t]he safe and then maybe whatever’s
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in the car” when he was instructing him to get rid of the “trash.” (Apr. 26, 2016 Tr.,
Vol. II, at 204). Evans testified that he did not get rid of the “safe box.” (Id. at 207).
{¶21} On cross-examination, Evans testified that he did not report to
Detective Frankart that he knew the location of the “safe box.” (Id. at 209).
Regarding the hooded sweatshirt, Evans testified that he could not provide it to
Detective Frankart. (Id. at 211-212). Although Evans did not see the surveillance
video, he knew what hooded sweatshirt Detective Frankart was searching for
because Evans “watched [Dahms] walk down the street in the middle of the
neighborhood with the safe box and the hoody on” after he committed the break-in.
(Id. at 221).
{¶22} On re-direct examination, Evans provided the following clarification
regarding the hooded sweatshirt:
Well, when you go to the mud bogs, it was chilly out, so I had
[the hooded sweatshirt] on. Jumped out of the truck in probably 3 or
4 foot [sic] of mud. Once the hoody was soaked with mud, it was
cold, because it was sort of, like, rainy out.
I took it off. My buddy got stuck on his four-wheeler. We didn’t
have no [sic] rope or no [sic] chain, so I’m like, well, hell, tie this
hoody up to it and try to pull him out. It was a four-wheeler, not a
truck, an ATV.
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So we tied the hoody to the bumper of the truck and the ATV
ripped it clean in half when we tried to pull it out, so we just left [the
hooded sweatshirt] there.
(Id. at 223). According to Evans, he did not provide Detective Frankart with the
location of the safe box because of his close friendship with Dahms. (Id. at 224).
{¶23} The State next offered the testimony of Thornton who testified that she
saw Dahms at her residence “about 1:00 in the afternoon” on April 20, 2015. (Apr.
27, 2016 Tr., Vol. I, at 4-5). According to Thornton, Dahms was at her residence
the next morning when she woke around 7:50 a.m. (Id. at 5-6). Thornton went to
bed the previous evening between 11:00 p.m. and 1:00 a.m. (Id. at 6-7). Thornton
received phone calls and letters from Dahms since that day. (Id. at 7). (See State’s
Exs. 11, 12, 13, 14, 15).
{¶24} Thornton identified State’s Exhibit 15 as a recording of a phone call
from Dahms to Thornton, which was played for the jury. (April 27, 2016 Tr., Vol.
I, at 7-8). In that recording, Dahms can be heard telling Thornton about the Subway
break-in and stating,
Just remember that if anybody asks you, because it happened Monday
the 20th. * * * But I stayed at your house on the 20th okay? * * * I
stayed at your house on the 20th, Monday the 20th. All right?
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(Id. at 9); (State’s Ex. 15). According to Thornton, Dahms asked her to “[w]rite a
statement” and told her to include in her statement “[t]hat he was at [her] house and
he was there.” (April 27, 2016 Tr., Vol. I, at 22). Thornton did not make that
statement because she “didn’t want to be involved.” (Id. at 22-23). According to
Thornton, she did not know if Dahms left her residence between the time she went
to sleep on April 20 and the time she woke on April 21, 2015. (Id. at 23).
{¶25} Thornton identified State’s Exhibits 11, 12, 13, and 14 as the letters
she received from Dahms. (Id. at 24). In one of the letters, Dahms “mentions giving
[Thornton] $500 for a birthday present for [Thornton’s adult son].” (Id. at 25).
Thornton interpreted that statement to mean that Dahms would repay her the money
that he owed her if she wrote the statement. (Id.). Dahms confesses in that letter
that he owed Thornton money, and Thornton testified that Dahms owed her “about
$400.” (Id.). Thornton testified that Dahms never gave her son money for his
birthday before. (Id.).
{¶26} In another letter, Dahms tells Thornton “that his sister is going to call
[the Housing Authority].” (Id. at 26). Thornton interpreted that statement to mean
that she needed to “[w]rite the statement” to prevent Teresa from calling the
Housing Authority, which would result in Thornton losing her “subsidized housing”
assistance. (Id.).
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{¶27} On cross-examination, Thornton testified that she has “some memory
loss because [she] had strokes, so [she] can’t remember everything.” (Id. at 32).
According to Thornton, Dahms asked her to write a statement reflecting that he was
at her residence during the times that she could remember—before she went to sleep
and after she woke. (Id. at 33). Thornton stated that Dahms asked her to write a
truthful statement, not a lie. (Id.). She testified that she would not lie for Dahms.
(Id. at 34). Thornton testified that her sister-in-law, who read Dahms’s letters,
suggested to Thornton that Dahms was trying to bribe her. (Id. at 38). Thornton
testified that she eventually blocked Dahms from being able to call her because he
threatened her for not providing the statement that he wanted her to provide to law
enforcement. (Id. at 48).
{¶28} Thornton testified that Dahms’s bedroom was located on the second
floor of her two-story apartment. (Id. at 42). She stated that she sleeps in a chair in
the living-room portion of her apartment, which is located within hearing distance
of the front and back doors to the apartment. (Id. at 43-44). She testified that she
did not hear Dahms leave the apartment after she went to sleep on April 20, 2015.
(Id. at 44). According to Thornton, when she woke at 7:50 a.m. on April 21, 2015,
she saw Dahms walking down the stairs. (Id. at 44). The Subway restaurant is
approximately 15-20 minutes from Thornton’s apartment. (Id. at 45). Thornton
testified that Dahms did not have a vehicle. (Id.). Thornton was not aware if anyone
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provided Dahms a ride from her apartment the night of April 20-21, 2015. (Id. at
46).
{¶29} The following exchange took place regarding Dahms threatening
Thornton:
[Thornton]: I took it as a threat. That’s why I blocked him.
Because he just kept yelling at me. Actually, he called
me a B-word and some, you know, some profound
language he didn’t need to use at me and that’s why I
took it as threatening me.
Because you don’t talk to me like that, especially
you know, when I give you a place to live and, you
know, I’ve been your friend for so many years. But the
way - - he was yelling and screaming at me all the time
and it as, like, what do you want me to do? There ain’t
[sic] really much I can do.
You know, and then he just kept yelling at me.
That’s why he got blocked. He wouldn’t leave me
alone.
[Dahms’s counsel]: Because he wanted you to give that statement and you
decided you wouldn’t give that statement - -
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[Thornton]: Right.
(Id. at 48). The defense then played for the jury another phone call from Dahms to
Thornton. (Id. at 50); (State’s Ex. 15). In that recording, Dahms can be heard saying
to Thornton,
Listen. Sunday, Monday, and Tuesday night, I was there. And
then Wednesday is when I went to Fostoria. I went to Fostoria
Wednesday night, stayed overnight with Kira, and then came back on
Thursday and started my job. Because Wednesday night is when I got
my car.
And I want you to tell him that * * * Tell him that you’ll go to
court for me.
(Apr. 27, 2016 Tr., Vol. I, at 52). Thornton testified that she was concerned that
she would be in trouble if she were to provide a statement to law enforcement. (Id.
at 63).
{¶30} Rickey Perrin (“Perrin”) testified on behalf of the State. (Id. at 63).
In exchange for his testimony, Perrin received a favorable sentence for his drug-
related conviction. (Id. at 64). Perrin testified that he was incarcerated with Dahms
and that Dahms confessed to smashing the window of the Subway restaurant and
stealing a cash box. (Id. at 65-67). Regarding Thornton, Perrin testified that Dahms
told him
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that [Thornton] was a girl that he was claiming that he stayed the night
at her house and that she was confused because he know [sic] he didn’t
stay the night there, but she didn’t know what she was talking about
because the things she was saying was making him look good.
(Id. at 68).
{¶31} On cross-examination, although Perrin was in the courtroom at the
time of Dahms’s evidentiary hearing, Perrin testified that he did not remember any
of the evidence presented during Dahms’s hearing because he “was trying to get out
of jail that day, too, so [he] didn’t pay no [sic] attention to what was going on with
[Dahms].” (Id. at 70). However, on re-cross examination, Perrin recalled that
Dahms’s evidentiary hearing lasted “for a long time.” (Id. at 85).
{¶32} Detective Frankart testified that he investigated the Subway restaurant
break-in. (Apr. 27, 2016 Tr., Vol. II, at 90-92). According to Detective Frankart,
Kira reported to law enforcement that Dahms was the person who broke into the
Subway restaurant. (Id. at 97). Kira reported to law enforcement that Dahms
confessed to her to throwing a brick through the Subway restaurant’s window and
stealing the cash drawer—facts which were not known to the public. (Id. at 98).
Kira reported that she saw Dahms the night of the break-in and saw that he had
$300, which matched the amount of money stolen from the Subway restaurant. (Id.
at 97-98).
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{¶33} Detective Frankart identified State’s Exhibit 20 as a disc containing
audio recordings of Dahms’s phone calls to Teresa. (Id. at 117). One of those phone
calls was played for the jury in which Dahms can be heard telling Teresa “to go get
[Thornton] and get a statement to the police.” (Id. at 120); (State’s Ex. 20). Dahms
can further be heard telling Teresa,
Because when they take this stuff to the grand jury * * * I need you to
have that statement in with that stuff so they can say, “Well, the guy,
this lady’s claiming that he stayed overnight.”
Do you know what I mean? And [Thornton] know [sic] that I stayed
there.
(Apr. 27, 2016 Tr., Vol. II, at 120); (State’s Ex. 20). Later in the conversation,
Dahms can be heard instructing Teresa, “All I wanted you to do was pick up the *
* * statement [from Thornton] that I wrote out and had notarized.” (Apr. 27, 2016
Tr., Vol. II, at 125); (State’s Ex. 20).
{¶34} Detective Frankart testified that Dahms identified Thornton as an alibi
witness for the night of the Subway break-in. (Apr. 27, 2016 Tr., Vol. II, at 108).
He stated, “During the first interview, she was not a main defense of his. It became
as the investigation proceeded, she became a main defense of him, his alibi for the
night.” (Id. at 109). Detective Frankart identified State’s Exhibits 11, 12, 13, and
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14 as the letters that Dahms wrote to Thornton. (Id. at 149-150); (State’s Ex. 11,
12, 13, 14). Detective Frankart read portions of those letters for the jury:
“Sarah, my sister is mad and saying she’s going to call the lady
at your office and call [the Housing Authority] on you. She is mad
because I stayed that night but now you won’t help me.”
***
“I need you to write that statement, Sarah. If you don’t write it,
my lawyer said they are going to charge me. If that happens, then he’s
going to have to make you come to court, like, five times and then you
also have to come to trial. And if you don’t show up to court all those
times, the judge will have you arrested.
Do you have a ride to court? Hell no, you don’t. It would be a
lot better if you would just write the statement and turn it in, because
then I won’t even get charged and nobody even has to go to court.
Teresa. Teresa told me if you turn your back on me, then she
will call [the Housing Authority] on you and tell them I lived with you
and you will lose your [housing assistance] because she is mad that
you don’t answer the phone.
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I am supposed to start school in August. If they charge me, I
won’t be able to. I will get $3,000 in loans, and I told you I will give
you $500 for a late birthday present for [Thornton’s adult son].
P.S. Please do this. My sister’s mad and wants to call [the
Housing Authority].”
(Apr. 27, 2016 Tr., Vol. II, at 151-52); (State’s Exs. 12, 13).
{¶35} Detective Frankart identified State’s Exhibit 17 as the surveillance
video depicting the break-in of the Subway restaurant, which was subsequently
played for the jury. (Apr. 27, 2016 Tr., Vol. II, at 94); (State’s Ex. 17). Although
the individual seen in the surveillance video is unidentifiable from the video,
Detective Frankart testified that Dahms matches the build of the person seen in the
video. (Apr. 27, 2016 Tr., Vol. II, at 96-97, 145). Detective Frankart testified that
the surveillance video depicts only one perpetrator. (Id. at 101). He further testified
that his investigation revealed that Dahms was receiving transportation from others
because his vehicle was impounded prior to the Subway restaurant break-in. (Id. at
113). Detective Frankart testified that Evans told him that Dahms stole “over $300”
from the Subway restaurant, and that Evans told Detective Frankart where Dahms
hid the safe box. (Id. at 102). Detective Frankart found the safe box where Evans
told him Dahms hid it. (Id. at 102-103). Regarding the hooded sweatshirt, Detective
Frankart testified, “Through my investigation, I found out that, according to Teresa
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Brown and [Evans], that a hooded sweatshirt was in [Dahms’s] vehicle.” (Id. at
107). However, Detective Frankart was unable to retrieve that hooded sweatshirt.
(Id.).
{¶36} Detective Frankart identified State’s Exhibit 7 as an extraction report
depicting Facebook messages between Dahms and Kira. (Id. at 154). In one
message from Dahms to Kira on April 20, 2015 at 4:39 p.m., Dahms informs Kira
that he “will be there in a bit”—meaning that he would be at Nye’s Trailer Park in
a bit. (Id. at 156); (State’s Ex. 7).
{¶37} Detective Frankart testified that Dahms claimed that another
individual, Kyle Yonikuss (“Yonikuss”), was the person who committed the
Subway restaurant break-in. (Id. at 157). Detective Frankart investigated Dahms’s
claim and learned from another law-enforcement officer that Yonikuss “had a
warrant for a theft” and that Yonikuss was believed to have “left town and went to
Wyoming.” (Id. at 157-158). Through his investigation, Detective Frankart did not
find any evidence that Dahms accused Yonikuss of the break-in to Kira, or any
communications between Kira and Yonikuss, but learned from Evans that Yonikuss
did not commit the break-in. (Id. at 158). Evans confirmed that Yonikuss “went to
Wyoming prior to the break-in.” (Id.). According to Detective Frankart, Dahms
blamed the break-in on Yonikuss because Yonikuss previously blamed a theft on
Dahms for which Dahms was criminally charged. (Id. at 159).
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{¶38} Detective Frankart testified that he concluded that Dahms’s motive to
commit the Subway restaurant break-in was to be able to “get his vehicle out of
impound.” (Id. at 110). He testified that Dahms’s versions of events were not
consistent and “were all over the place,” especially regarding how he obtained the
money to pay his vehicle’s impounding fees. (Id. at 110-111).
{¶39} On cross-examination, Detective Frankart testified that Thornton
confirmed that Dahms was at her residence when she went to sleep and when she
woke. (Apr. 29, 2016 Tr., Vol. I, at 115). Thornton further confirmed that she
sleeps by the front door but did not hear Dahms leave or return the night of April
20-21, 2015. (Id.). Detective Frankart testified that he did not find any messages
on Dahms’s phone seeking a ride from Findlay to Fostoria the night of the Subway
restaurant break-in. (Apr. 27, 2016 Tr., Vol. II, at 202).
{¶40} Detective Frankart read for the jury a portion of his investigative
statement,
“Through my investigation, I found that Sarah Thornton is a close
friend of [Dahms’s], who he has known for approximately 13 years.
She is also someone [Dahms] feels is easily manipulated, even
[“]retarded” * * * as he referenced her in several telephone calls to his
sister, Teresa Brown.”
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(Apr. 29, 2016 Tr., Vol. I, at 159). He testified that he “listened to the phone calls
between [Thornton] and [Dahms]. [He] read the letters afterwards and saw how he
was pounding things into her head trying to manipulate her. That’s why [he] put
he’s manipulating [Thornton]. He was trying.” (Id. at 162). He further testified
that Dahms
didn’t tell [him] to talk to [Thornton]. He said he didn’t think she’d
remember anything. And then as soon as [Detective Frankart] started
listening to jail phone calls, he was on the phone talking to [Thornton],
“Remember, I was there from April 17th on.” He was setting it up.
(Id. at 155). Detective Frankart read another portion of one of Dahms’s letters to
Thornton for the jury:
“All you need to do is tell the truth. I don’t care how you write
it or what you say. Just tell them the truth: that I was at your house
and stayed there the night of Monday, April 20th, and had a job
orientation the next morning at 8:00 a.m. Sarah, please.”
***
“I did not do [sic]. Please. Also, tell them how Kira lies to the
cops. She lied in February to cause me trouble to remember[?] Listen,
please. I need you and you know I would help you.”
(Id. at 132). (See also State’s Ex. 13).
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{¶41} Detective Frankart testified that, although he never dealt with
Yonikuss, Evans informed him that Yonikuss and Dahms have a similar height and
build. (Apr. 27, 2016 Tr., Vol. II, at 162-163). He agreed that it was possible that
Yonikuss was in Fostoria on April 20-21, 2015 because he could not confirm
whether Yonikuss was in Wyoming. (Id. at 222-224); (Apr. 29, 2016 Tr., Vol. I, at
112).
{¶42} He further testified that Dahms told him that “Kira has tried to cause
trouble with the police for [Dahms]” in the past. (Apr. 27, 2016 Tr., Vol. II, at 210-
211). Detective Frankart testified that Evans or Andy told him that it is “a pretty
good assumption” that Kira would lie to get Dahms in trouble. (Id. at 212-213).
Regarding the hooded sweatshirt, he testified that Evans was in possession of the
hooded sweatshirt, but told him that it was destroyed after being used “to pull a four-
wheeler out with it, and [Evans] ripped it in half and left it where it laid.” (Apr. 29,
2016 Tr., Vol. I, at 119).
{¶43} On re-direct examination, Detective Frankart testified that his
investigation revealed that Dahms told Kira, Kady, Evans, Andy, and Perrin that he
committed the Subway restaurant break-in. (Id. at 165). In the audio recordings of
Dahms’s phone calls, which were played for the jury, Dahms did not accuse
Yonikuss of the break-in. (Id. at 166). Dahms was the only person who claimed
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that Yonikuss was the perpetrator. (Id. at 172). However, multiple witnesses
indicated that Dahms perpetrated the break-in. (Id. at 172-173).
{¶44} Detective Frankart testified that Kira’s story did not change
throughout his investigation. (Id. at 167). Regarding the video recording of Kira’s
interview, which was played for the jury, Kira can be heard telling Detective
Frankart that the break-in occurred April 19-20, 2015. (Id. at 167). However,
Detective Frankart testified that Kira later called him to tell him that she was
mistaken about the date of the brake-in and “corrected” her statement. (Id. at 168-
169). Detective Frankart testified that Kira’s phone call correcting her statement
made her statement “even more significant.” (Id. at 169). He testified that, in
addition to telling him what Dahms told Kira about the break-in, Kira reported that
she observed Dahms “with a wad of cash, change, and a ‘Thank You’ bag. And she
knew it was over $300, because [Dahms] counted it in front of her.” (Id. at 171).
Although Evans and Andy indicated that Kira might lie, Evans and Andy confirmed
Kira’s story that Dahms committed the break-in. (Id. at 171-172).
{¶45} On re-cross examination, Detective Frankart testified that, because
Kira, Kady, Andy, and Evans live within close proximity to each other at Nye’s
Trailer Park, they could have colluded to blame the break-in on Dahms. (Id. at 178).
However, he testified that Andy and Evans’s collusion did not “make sense, because
Andy and [Evans] really did not want to testify against [Dahms]. Neither wrote a
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statement. They both showed up because they were subpoenaed.” (Id. at 178-179).
Neither Evans nor Andy wanted to be involved in the case against Dahms, which is
why Andy did not appear at trial to testify. (Id. at 179)
{¶46} After the State presented its witnesses, it moved to admit its exhibits.
(Apr. 29, 2016 Tr., Vol. II, at 184). Dahms objected to State’s Exhibits 7 and 20,
which were admitted over Dahms’s objections. (Id. at 184-185). The remainder of
the State’s exhibits were admitted without objection, and the State rested. (Id. at
186). Next, Dahms made a Crim.R. 29(A) motion, which the trial court denied. (Id.
at 186-188).
{¶47} The defense called five witnesses. As one of its witnesses, the defense
called Teresa to testify. (Apr. 29, 2016 Tr., Vol. II, at 256). Teresa testified that
she spoke with Thornton “three or four times a day.” (Id. at 291). According to
Teresa, Thornton was “adamant” that Dahms stayed at her house the night of April
20-21, 2015. (Id. at 292-293).
{¶48} Teresa testified that Dahms “wanted [her] to go help [Thornton] do [a
statement for law enforcement] because [Thornton] can’t – she can’t write. She
can’t spell.” (Id. at 264). Teresa testified that Dahms “just wanted [her] to go over
and let [Thornton] say what she wanted [her] to write, because she can’t spell or
write,” and that he wanted Thornton to tell the truth. (Id. at 276-277). Teresa did
not help Thornton write that statement because Thornton
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said that she was going to write a statement and she never did. And
she told me numerous, numerous times that [Dahms] was there that
night. I mean, “There’s no way he could have done it,” come out of
her mouth, and “He was there.”
(Id. at 264). She further testified,
I never really refused to help [Thornton] write her statement.
[Thornton] just kind of flim-flammed [sic] around, like, “Yeah, I’m
going to do it. No, I don’t want to do it. Yeah, I’m going to do it.
Well, if they need me in court, I’ll just go to court for him.”
I mean, I more or less had to bribe her in the form of two bags of
groceries to go pick up [Dahms’s] clothes and stuff. And there, I had
to leave a message to tell her that I had groceries for her so she would
even call me back.
(Id. at 276). Teresa testified that Dahms owed Thornton “close to $500” because
Thornton loaned him money to pay for his court fines. (Id. at 293).
{¶49} Teresa testified that she wrote to Dahms and told him that she “was
going to call [the Housing Authority] on [Thornton]” to report her for allowing
Dahms to stay with her so that Thornton would lose her housing assistance. (Id. at
290). As a result, Dahms wrote a letter to Thornton telling her that Teresa was going
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to report her. (Id. at 290-291, 293). According to Teresa, Thornton was upset with
Dahms for not paying her back. (Id. at 294).
{¶50} On cross-examination, the State played for the jury an audio recording
of a June 30, 2015 conversation between Teresa and Detective Frankart. (Id. at
302). In that recording, Teresa can be heard telling Detective Frankart that Thornton
called her, after receiving Dahms’s letter threating to report Thornton to the Housing
Authority, to tell Teresa that she received “a bad letter” from Dahms. (Id. at 309).
Also in that conversation, Teresa can be heard denying to Detective Frankart that
she threatened to report Thornton to the Housing Authority. (Id. at 304). Further,
Teresa can be heard telling Detective Frankart that she received a letter from Dahms
instructing her to write a statement for Thornton and instructing her to begin the
statement by writing, “my name is Sarah -- whatever her name, Thorn --.” (Id. at
324-325). She can be heard explaining that Dahms wanted her to lie for him and
“say [she] seen [sic] [him when she] didn’t see him” because she doesn’t “know
where he was that night.” (Id. at 336). She continued,
And just like me [sic] and [Thornton] talked, well, if this goes all the
way to trial and [Thornton] knows something about it, don’t write a
statement. Let them subpoena you in. Then you’re going to be on the
bench. And if you lie, you lie. * * * Then you’re in trouble.”
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(Id. at 337). Teresa testified that she lied to Detective Frankart about threatening to
report Thornton to the Housing Authority because she “did not want to get in
trouble.” (Id. at 315).
{¶51} Dahms testified in his defense. (Apr. 29, 2016 Tr., Vol. III, at 365).
He testified that “slept at [Thornton’s] house that night” and “woke up at
[Thornton’s] house that morning.” (Id. at 378). Further, he testified that he did not
go to Fostoria on the night of April 20-21, 2015. (Id.).
{¶52} Regarding Thornton, he testified that he “did not bribe [Thornton].
[He] owed [Thornton] money. [He] owed [Thornton] a lot of money.” (Id. at 385).
Dahms identified State’s Exhibit 13 as a letter he wrote to Thornton, and explained
that he wrote the letter because he “wanted her to write a statement for [him]. All
though the letter, [he] asked her to tell the truth. That’s all [he] wanted [Thornton]
to do from the start.” (Id. at 386). According to Dahms, he “[n]ever asked her to
lie for [him]. There’s not one mention in any of [his] letters where [he] ever asked
her to lie.” (Id.). To bolster his testimony, Dahms read from the letter:
It says, “Listen, all I want you to do is tell the truth. I need you to
write a statement, Sarah. If you don’t write it, my lawyer said that
they are going to charge me.” * * * I am supposed to start school again
in August. If they charge me, I won’t be able to. I will get $3,000 in
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loans, and I told you I would give you $500 for a late birthday present
for [Thornton’s adult son]”
(Id. at 386-387).
{¶53} According to Dahms, he owed Thornton money because she was
“giving [him] money to pay court fines.” (Id. at 387). Further, he testified that he
said in his letter that the $500 would be a “late birthday present” for Thornton’s
adult son because the money that Thornton loaned to him was money that Thornton
planned to spend on her son’s birthday, and Thornton told Dahms that he needed to
return that money to her so she could spend it for the birthday. (Id.). Dahms
clarified that the letter states, “‘I told you I would give you $500,’ It doesn’t say, ‘I
will give you $500.’” (Id.). Dahms testified that Thornton “blocked [his] calls
because [he] was calling her so much * * * [but he] wanted [Thornton] to tell the
truth[, he] never asked [Thornton] to lie.” (Id. at 390). Dahms thought that
Thornton blocked his calls because she wanted the money that he owed her, not
because he was intimidating her. (Id.).
{¶54} On cross-examination, the State played for the jury a video recording
of Detective Frankart’s interview of another girlfriend of Dahms’s, Stephanie
Thompson (“Thompson”), whom Dahms claims was also with him the night of
April 20-21, 2015, along with another person named “Jade.” (Id. at 408-409). In
the video recording, Thompson can be heard telling Detective Frankart that she
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Case No. 13-16-16
spent the night with Dahms at Thornton’s house in March and April 2015. (Id. at
412). Thompson recalled that one of the nights she was spending with Dahms, she
noticed “two cop cars” outside Thornton’s residence “[a]round maybe between,
like, 10:00 or 12:00.” (Id. at 425). According to Thompson, she knew that Dahms
“was always in trouble, so [she] text [sic] him and [she] told him, ‘There’s two cop
cars out here’ * * * ‘I think there’s two cop cars out here. I was just letting you
know before you pull back in.’” (Id. at 425-426). Thompson told Detective
Frankart that Dahms was in Fostoria “[f]eeding his dog,” which is slang for
“[g]etting around with his buddies.” (Id. at 426). Thompson told Detective Frankart
that Dahms returned around 4:00 a.m. (Id. at 427). Thompson could not recall if
that was on the evening of April 20-21, 2015 because she had been drinking. (Id.
at 427-428). Later in the conversation, she did not think it was that evening because
she remembered that Dahms drove his car that night and Dahms’s car was
impounded on April 13, 2015. (Id. at 428, 430). However, Thompson thought she
was with Dahms the night of April 20-21, 2015 because she “bought him food” on
April 20, 2015. (Id. at 430). Thompson again changed her mind later in the
conversation and stated that she “was not there.” (Id. at 432). Thompson blamed
her difficulty remembering on her drinking. (Id.).
{¶55} Nevertheless, Dahms testified that he did not tell Detective Frankart
that Thompson or “Jade” could provide an alibi for him for the night of April 20-
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21, 2015 because Detective Frankart “didn’t ask.” (Id. at 436). Dahms admitted
that he did not have statements from Thompson or “Jade” or offer testimony from
either witness. (Id.).
{¶56} Thereafter, the defense moved to admit its exhibits, which were
admitted without objection, and rested. (Id. at 446-447). The State did not present
any witnesses on rebuttal. (Id. at 447). Dahms renewed his Crim.R. 29 motion and
his motion for a mistrial, which were denied. (Id. at 448). The matter was submitted
to the jury, which found Dahms guilty as to the counts of the indictment. (Id. at
513); (Apr. 30, 2016 Tr. at 2-3).
{¶57} We first review the sufficiency of the evidence supporting Dahms’s
bribery and intimidation-of-a-witness-in-a-criminal-case convictions. State v.
Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v.
Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). We
will begin by addressing his sufficiency-of-the-evidence argument as it relates to
his bribery conviction, then we will address his sufficiency-of-the-evidence
argument as it relates to his intimidation-of-a-witness-in-a-criminal-case
conviction.
{¶58} The criminal offense of bribery is codified in R.C. 2921.02, which
provides, in relevant part:
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Case No. 13-16-16
(C) No person, with purpose to corrupt a witness or improperly to
influence a witness with respect to the witness’s testimony in an
official proceeding, either before or after the witness is subpoenaed or
sworn, shall promise, offer, or give the witness or another person any
valuable thing or valuable benefit.
R.C. 2921.02(C).
{¶59} Under his first assignment of error, Dahms specifically argues that
there is insufficient evidence that he committed bribery because there is insufficient
evidence that he: (1) “intended to corrupt or otherwise improperly influence
[Thornton’s] testimony;” (2) offered Thornton a valuable thing or benefit; or (3)
influenced Thornton’s testimony in an official proceeding. (Appellant’s Brief at
18).
{¶60} First, we address whether the State presented sufficient evidence that
Dahms intended to (1) corrupt the witness or (2) improperly influence her with
respect to her testimony in an official proceeding either before or after she was
subpoenaed or sworn. See State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-
Ohio-2511, ¶ 56, citing R.C. 2921.02(C). Dahms argues that, because he did not
ask Thornton to lie for him, there is insufficient evidence that he intended to corrupt
Thornton or otherwise improperly influence her testimony. Stated differently,
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Dahms argues that he cannot be convicted of bribery for “encouraging” Thornton
to provide “truthful testimony.” (Appellant’s Brief at 18).
{¶61} “[O]ne way to commit bribery under R.C. 2921.02(C) is to offer a
valuable thing or benefit with the purpose to corrupt a witness.” Marshall at ¶ 61.
“To corrupt” “means to destroy or undermine the honesty or integrity of another, to
taint, to affect.” Id. at ¶ 57. The trial court similarly defined “to corrupt” in its
instructions to the jury.2 (See Apr. 29, 2016 Tr., Vol. III, at 500).
{¶62} Dahms avers that he cannot be convicted of bribery if he merely
encouraged Thornton to “tell the truth.” Dahms’s argument is erroneous. Evidence
of a defendant expressly asking a witness to change their testimony is not required
for the “corrupt” form of bribery. Marshall at ¶ 61. Indeed, the State presented
sufficient evidence that Dahms intended to corrupt Thornton. The State presented
evidence of letters and phone calls from Dahms to Thornton in which he repeatedly
asks Thornton to provide law enforcement a statement indicating that Dahms stayed
at her residence on April 20-21, 2015. Thornton did not want to make a statement
because she did not want to be involved and because she did not want to get in
trouble. Yet, to secure her statement, Dahms offered to repay Thornton the money
that he owed her.
2
The trial court defined “to corrupt” for the jury as “to destroy or undermined the honesty or integrity of
another, to taint, or to infect.” (Emphasis added.) (Apr. 29, 2016 Tr., Vol. III, at 500). We presume that the
trial court meant to say “affect,” not “infect.”
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{¶63} Further, while Dahms minimizes his interactions with Thornton,
Dahms ignores the evidence in the record that he was manipulating or “coaching”
Thornton to tell his version of the truth. Purposefully manipulating or coaching a
witness to tell a defendant’s version of the truth is within the meaning of to
corrupt—that is, purposely encouraging a witness to provide the defendant’s version
of the truth is to taint or affect the honesty or integrity of another. See State v.
Halleck, 308 N.W.2d 56, 59 (IA.1981) (“To improperly influence a witness is not
limited to asking a witness to lie. * * * An improper influence includes offers of a
bribe to ‘persuade the witness to shade or color his testimony in a certain way,
without actually lying.’”), quoting 4 Yeager & Carlson, Iowa Practice: Criminal
Law and Procedure, 445 (1979), and citing State v. Ventola, 122 Conn. 635, 640
(1937) and State v. Liss, 145 Minn. 45, 51 (1920); Liss at syllabus (concluding that
the “defendant’s belief in the truth of the statement which by the payment of money
he was influencing the witness to make was not a defense”). See also Annotation,
Falsity of contemplated testimony as condition of offense of bribery of, attempt to
bribe, or acceptance of bribe or gift by, prospective witness, 110 A.L.R. 582
(Originally published 1937) (looking to the common law roots of the offense of
bribery and noting that “The dictum that it seemed to be a common-law offense to
offer money to swear to a particular thing, ‘whether true or false,’ was expressed in
R. v. Darby, (1702) 87 Eng. Rep. 1121.”).
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Case No. 13-16-16
{¶64} Thornton suffered from memory loss from her strokes, and Dahms
knew that Thornton was easily manipulated and even referred to her as “retarded.”
Thornton testified that not only did Dahms ask her to write a statement, but also told
her to include in her statement that Dahms was at her residence on that date. There
is abundant evidence in the record of Dahms manipulating or coaching Thornton to
remember his version of the truth through his numerous letters and phone calls to
Thornton—that is, the record reflects that Dahms was purposefully persuading
Thornton “to shade or color [her statement] in a certain way.” See Halleck at 59
(concluding that the State provided sufficient evidence that Halleck committed
bribery because Halleck “‘did intend to direct the nature, character, mode and
manner of the testimony’”).
{¶65} As such, we conclude that Dahms’s manipulation or coaching of
Thornton to provide law enforcement with his version of the truth coupled with his
promise to repay Thornton the money that he owed her in exchange for her statement
is sufficient evidence that Dahms acted with purpose to corrupt Thornton. See
Marshall, 2015-Ohio-2511, at ¶ 65 (“A reasonable jury could also conclude that
Marshall acted with purpose to corrupt when he sought to influence or change
M.T.’s likely position at Castro’s sentencing by offering her money.”).
{¶66} Second, Dahms argues that there is insufficient evidence that he
offered Thornton a valuable thing or benefit because Dahms was merely offering to
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Case No. 13-16-16
return money to Thornton that he previously borrowed from her. “There can be no
doubt that money is a ‘valuable thing or benefit’ for the purposes of R.C. 2921.02.”
Marshall at ¶ 60. Whether Dahms’s promise of payment to Thornton was the
promise of the repayment of a loan or was the promise of a gift is inconsequential.
See State v. Nader, 8th Dist. Cuyahoga No. 43697, 1982 WL 5208, *4 (concluding
that there was sufficient evidence that Nader committed bribery “[r]egardless of
whether the payments are designated as a loan or gift” because Nader intended to
influence the city building inspector); State v. Lieberman, 114 Ohio App. 339, 343
(10th Dist.1961) (concluding that the refund of the payment for realty constitutes a
valuable thing or benefit). Indeed, regardless of whether Dahms’s promise to pay
Thornton is designated as the repayment of a loan, gift, or otherwise, he intended to
corrupt Thornton with his promise to repay her the $500 that he owed her.
{¶67} Finally, Dahms argues that there is insufficient evidence that he
influenced Thornton’s testimony in an official proceeding because “[m]aking a
statement to the police prior to any indictment is not an ‘official proceeding.’”
(Appellant’s Brief at 19). “[T]here are two distinct ways to commit bribery under
statute: (1) offering or giving any valuable thing or benefit with purpose to corrupt
a witness; or (2) offering or giving any valuable thing or benefit to improperly
influence a witness.” (Emphasis added.) Marshall at ¶ 46. The modifier, “with
respect to the witness’s testimony in an official proceeding” applies only to the
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“improperly influence” form of bribery, not the “corrupt” form of bribery. See id.
Because we conclude that there is sufficient evidence that Dahms committed the
“corrupt” form of bribery, Dahms’s argument is not well taken, and we need not
address whether there is sufficient evidence of the modifier requiring the witness’s
testimony be part of an official proceeding.
{¶68} Accordingly, we conclude that a rational trier of fact could have found
beyond a reasonable doubt that Dahms committed bribery. As such, Dahms’s
bribery conviction is based on sufficient evidence.
{¶69} Moving to his intimidation-of-a-witness-in-a-criminal-case
conviction, Dahms argues that there is insufficient evidence that: (1) he intimidated
a witness in a criminal case because there is insufficient evidence that the witness
was a witness as defined by the statute; and (2) he made an unlawful threat.
{¶70} The criminal offense of intimidation of a witness in a criminal case is
codified in R.C. 2921.04, which provides, in relevant part:
No person, knowingly and by force or by unlawful threat of harm to
any person * * * or by unlawful threat to commit any offense or
calumny against any person, shall attempt to influence, intimidate, or
hinder any of the following persons:
***
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(2) A witness to a criminal * * * act by reason of the person being a
witness to that act.
R.C. 2921.04(B)(2).
{¶71} First, we will address whether the State presented sufficient evidence
that Thornton is a witness as defined under the statute. The statute defines a
“witness” as “any person who has or claims to have knowledge concerning a fact or
facts concerning a criminal * * * act, whether or not criminal * * * charges are
actually filed.” R.C. 2921.04(E).3
{¶72} Dahms argues that “Thornton was not a witness to the alleged
crime”—that is, that “[s]he had no knowledge of the evens that happened at Subway
or [Dahms’s] alleged involvement in said act.” (Appellant’s Brief at 19). However,
Dahms’s argument is belied by the fact that he alleged that Thornton was his alibi
witness during the time the break-in of the Subway restaurant occurred. Clearly, an
alibi witness is a person who has or claims to have knowledge concerning a fact or
facts concerning a criminal act—namely, that the accused did not commit the
criminal act of which they are accused of committing. See State v. Wallace, 9th
Dist. Lorain No. 06CA008889, 2006-Ohio-5819, ¶ 19 (“An alibi witness is defined
as “[a] witness who testifies that the defendant was in a location other than the scene
3
R.C. 2921.04 was amended in 2012 to add the definition of a witness. 2012 Sub.H.B. 20, 2012 Ohio Laws,
File 83. See also State v. Davis, 132 Ohio St. 3d 25, 2012-Ohio-1654, ¶ 3, fn.1 (acknowledging the General
Assembly’s amendment of R.C. 2921.04 broadening the definition of a “witness” under the statute).
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Case No. 13-16-16
of the crime at the relevant time.”) (Emphasis sic.), quoting Black’s Law Dictionary
1633 (8th Ed.2004).
{¶73} The State presented sufficient evidence that Thornton is a witness as
defined under R.C. 2921.04(E). That is, a rational trier of fact could conclude that
Thornton had knowledge concerning facts concerning a criminal act—namely,
knowledge that Dahms was in a location other than the Subway restaurant at the
time of the break-in—making her a witness as defined by R.C. 2921.04(E). See
State v. Brent, 10th Dist. Franklin No. 14AP-187, 2014-Ohio-5246, ¶ 16. That
Thornton did not witness the criminal act does not preclude her from being a witness
as defined by R.C. 2921.04(E). See State v. Fonseca, 3d Dist. Henry No. 7-16-04,
2016-Ohio-7348, ¶ 18, citing State v. Fox, 5th Dist. Licking No. 13-CA-71, 2014-
Ohio-1652, ¶ 31 (“Appellant maintains he could not be convicted of intimidation of
a witness because Spires was not a witness to the alleged offense as she did not see
what occurred between himself and A.M. Appellant’s assertion has no merit.”).
{¶74} Next, Dahms argues that he cannot be convicted of intimidating a
witness in a criminal case because there is insufficient evidence that he made an
unlawful threat of harm. “The Supreme Court of Ohio has held that ‘an unlawful
threat of harm’ is satisfied only when the very making of the threat is itself unlawful
because it violates established criminal or civil law.’” State v. Jackson, 12th Dist.
Fayette No. CA2011-01-001, 2011-Ohio-5593, ¶ 48, quoting State. v. Cress, 112
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Ohio St.3d 72, 2006-Ohio-6501, ¶ 42. Stated differently, “‘the threat itself, not the
threatened conduct, must be unlawful.’” State v. Khaliq, 5th Dist. Licking No. 15-
CA-64, 2016-Ohio-7859, ¶ 27, quoting State v. Yambrisak, 5th Dist. Richland No.
2012-CA-50, 2013-Ohio-1406, ¶ 31, citing Cress at ¶ 38. “‘An unlawful threat must
accordingly connote more than just a threat, i.e. more than just a communication to
a person that particular negative consequences will follow should the person not act
as the communicator demands.’” Jackson at ¶ 48, quoting Cress at ¶ 41. “Thus, the
Supreme Court’s decision in Cress suggests that in order for the state to meet its
burden in an R.C. 2921.04(B) prosecution, the threat must violate a predicate
offense.” Id., citing Cress at ¶ 42-43 and State v. Armstrong, 9th Dist. Summit No.
24479, 2009-Ohio-5941, ¶ 19. “However, the Court in Cress did not hold that the
‘predicate offense’ must be identified in the indictment or otherwise specified by
the state.” Id., citing State v. Ott, 11th Dist. Portage No. 2007-P-0093, 2008-Ohio-
4049, ¶ 26 and Armstrong at ¶ 19.
{¶75} The State presented sufficient evidence that Dahms made an unlawful
threat because the State presented sufficient evidence that Dahms committed the
predicate offense of coercion in violation of R.C. 2905.12. See Cress at ¶ 43
(concluding that conduct constituting the offense of coercion under R.C. 2905.12
serves “as a predicate offense for the crime of witness intimidation as proscribed by
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R.C. 2921.04(B)”). The criminal offense of coercion is codified under R.C.
2905.12, which provides:
(A) No person, with purpose to coerce another into taking or
refraining from action concerning which the other person has a legal
freedom of choice, shall do any of the following:
(1) Threaten to commit any offense;
(2) Utter or threaten any calumny against any person;
(3) Expose or threaten to expose any matter tending to subject any
person to hatred, contempt, or ridicule, to damage any person’s
personal or business repute, or to impair any person’s credit;
(4) Institute or threaten criminal proceedings against any person;
(5) Take, withhold, or threaten to take or withhold official action, or
cause or threaten to cause official action to be taken or withheld.
R.C. 2905.12(A). Indeed, a rational trier of fact could conclude that Dahms
intended to coerce Thornton to provide law enforcement with a statement by
threatening to take official action by reporting Thornton to the Housing Authority.
See State v. Zylko, 8th Dist. Cuyahoga No. 89949, 2008-Ohio-3032, ¶ 41
(concluding that “the trial court could have reasonably inferred from defendant’s
statements in the phone call to Deacon Senn that his intention was to intimidate or
coerce Deacon Senn from pressing charges or cooperating in defendant’s criminal
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prosecution by making a false charge or misrepresentation maliciously calculated
to harm Deacon Senn’s reputation.”). As such, viewing the evidence in a light most
favorable to the prosecution, a rational trier of fact could have reasonably inferred
the unlawfulness of the threat communicated by Dahms to constitute coercion in
violation of R.C. 2905.12(A). See Jackson at ¶ 51; Zylko at ¶ 42. Therefore, we
conclude that there is sufficient evidence that Dahms intimidated a witness in a
criminal case.
{¶76} Having concluded that Dahms’s bribery and intimidation-of-a-
witness-in-a-criminal-case convictions are based on sufficient evidence, we next
address Dahms’s argument that his bribery, intimidation-of-a-witness-in-a-
criminal-case, breaking-and-entering, and complicity-to-tampering-with-evidence
convictions are against the manifest weight of the evidence. Velez, 2014-Ohio-
1788, at ¶ 76.
{¶77} As an initial matter, we note that Dahms does not make any argument
under his second assignment of error conveying how his bribery and intimidation-
of-a-witness-in-a-criminal-case convictions are against the manifest weight of the
evidence. “[A] defendant has the burden of affirmatively demonstrating the error
of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174,
2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-
2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of
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error, it is not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27. “App.R.
12(A)(2) provides that an appellate court ‘may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on
which the assignment of error is based or fails to argue the assignment separately in
the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin
No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,
App.R. 16(A)(7) requires that an appellant’s brief include ‘[a]n argument containing
the contentions of the appellant with respect to each assignment of error presented
for review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies.’” Id., quoting
App.R. 16(A)(7). Not only did Dahms fail to include an argument regarding how
his bribery and intimidation-of-a-witness-in-a-criminal-case convictions are against
the manifest weight of the evidence, but Dahms failed to provide citations to the
authorities, statutes, and parts of the record that support his argument.
{¶78} As we noted above, sufficiency of the evidence and manifest weight
of the evidence are different legal concepts. Thompkins, 78 Ohio St. 3d at 389. That
Dahms incorporated his “arguments made above [under his sufficiency-of-the-
evidence assignment of error] for the Bribery and Intimidation of a Witness
charges” in his conclusory paragraph under his second assignment of error does not
comport with the requirements of App.R. 12(A)(2) or (16)(A)(7) because
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sufficiency of the evidence and manifest weight of the evidence are different legal
concepts, which require different arguments. (See Appellant’s Brief at 23).
{¶79} However, in the interest of justice, we will address the merits of
Dahms’s arguments. See State v. Thomas, 3d Dist. Mercer No. 10-10-17, 2011-
Ohio-4337, ¶ 25. Applying Dahms’s arguments that he makes in support of his
sufficiency-of-the-evidence assignment of error, we conclude that the jury did not
clearly lose its way and create such a manifest miscarriage of justice that Dahms’s
bribery and intimidation-of-a-witness-in-a-criminal-case convictions must be
reversed and a new trial ordered.
{¶80} Indeed, the evidence that we summarized in our sufficiency-of-the-
evidence analyses supporting Dahms’s bribery and intimidation-of-a-witness-in-a-
criminal-case convictions is weightier than the evidence against those convictions.
First, regarding Dahms’s bribery conviction, despite the evidence that Dahms relies
on in support of his sufficiency-of-the-evidence argument, the evidence that he
committed bribery outweighs any evidence that he did not commit that crime. In
his sufficiency-of-the-evidence argument, Dahms points to the evidence that: (1)
Thornton would not lie for Dahms; (2) Dahms did not ask Thornton to lie for him;
and (3) Dahms was merely promising to repay a loan made to him by Thornton
when he promised to pay her $500 for her son’s birthday. However, that evidence
does not outweigh the evidence that Dahms intended to corrupt Thornton.
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{¶81} The evidence of Dahms manipulating or coaching Thornton to provide
law enforcement with Dahms’s version of the truth overwhelmingly supports
Dahms’s intent to persuade Thornton to shade or color her testimony in a way that
would benefit Dahms. There is ample evidence in the record that Thornton is
susceptible to manipulation and has difficulty recalling events—traits that Dahms
was aware of and exploited. Further, because we concluded that the promise to
repay a loan constitutes the promise of a valuable thing or benefit under R.C.
2921.02(C), that Dahms was merely promising Thornton to repay her money that
she loaned him does not weigh against his conviction; rather, it weighs in favor of
conviction. Therefore, we conclude that Dahms’s bribery conviction under R.C.
2921.02(C) is not against the manifest weight of the evidence.
{¶82} Second, Dahms’s intimidation-of-a-witness-in-a-criminal-case
conviction is not against the manifest weight of the evidence. In his sufficiency-of-
the-evidence argument, Dahms points to evidence that: (1) Thornton did not witness
the Subway restaurant break-in; and (2) Dahms did not make “any threat of harm or
calumny against Thornton.” (Appellant’s Brief at 20). Although Thornton did not
witness the Subway restaurant break-in, Dahms alleges that Thornton is his alibi
witness for the time at which the Subway restaurant break-in occurred. Stated
differently, Dahms alleges that Thornton witnessed that Dahms did not commit the
Subway restaurant break-in. As such, because Dahms alleges that Thornton is his
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alibi witness, Thornton is a witness under R.C. 2921.04(B)—a fact which weighs in
favor of conviction.
{¶83} Moreover, the evidence that we summarized in our sufficiency-of-the-
evidence analysis supporting that Dahms made an unlawful threat is weightier than
Dahms’s contention that he did not threaten Thornton. Dahms erroneously contends
that the evidence that he did not unlawfully threaten Thornton outweighs the
evidence that he unlawfully threatened Thornton because “reporting Thornton to
[the Housing Authority] would have been a truthful statement” since “[t]here is
evidence to show that [Dahms] was, in fact, living with Thornton for some time.”
(Appellant’s Brief at 20). Dahms ignores that his threat to cause a report to be made
regarding Thornton to the Housing Authority—regardless of its truth—amounted to
coercion. Indeed, the evidence that Dahms coerced Thornton is overwhelming. Not
only did Dahms include in a letter to Thornton his threat that a report would be made
to Housing Authority against Thornton, the State presented evidence that Thornton
felt threatened by Dahms to the extent that she blocked him from being able to call
her. Further, the State presented evidence that Dahms threatened possible
consequences if Thornton did not provide law enforcement with a statement,
including that (1) Dahms would be charged with a crime; (2) Thornton would have
to appear in court “five times”; and (3) Thornton would be arrested if she did not
appear, especially because she does not have transportation to court. For these
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reasons, we conclude that Dahms’s intimidation-of-a-witness-in-a-criminal-case
conviction is not against the manifest weight of the evidence.
{¶84} Moving to Dahms’s argument that his breaking-and-entering and
attempted-complicity-to-tampering-with-evidence convictions are against the
manifest weight of the evidence, we conclude that, “[e]ven removing the lens of
favorability in favor of the prosecution, through which we examine the sufficiency
of the evidence, this is not an exceptional case where the evidence weighs heavily
against the convictions.” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-
Ohio-222, ¶ 33.
{¶85} R.C. 2911.13 sets forth the offense of breaking and entering and
provides, in relevant part, “(A) No person by force, stealth, or deception, shall
trespass in an unoccupied structure, with purpose to commit therein any theft
offense, as defined in section 2913.01 of the Revised Code, or any felony.” R.C.
2911.13(A). Dahms does not dispute the evidence concerning the underlying
elements of the breaking-and-entering offense of which he was convicted; rather, he
disputes the issue of identity as to the conviction. See State v. Missler, 3d Dist.
Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 13. As such, we will address only the
identity element of the offense. Id., citing State v. Carter, 2d Dist. Montgomery No.
25447, 2013-Ohio-3754, ¶ 9-12. “‘It is well settled that in order to support a
conviction, the evidence must establish beyond a reasonable doubt the identity of
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the defendant as the person who actually committed the crime at issue.’” Id.,
quoting State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27,
citing State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19, and
State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11.
{¶86} On appeal, Dahms argues that his breaking-and-entering conviction is
against the manifest weight of the evidence because there is no “direct physical
evidence” linking Dahms to the Subway restaurant break-in, and the jury lost its
way in believing the testimony of Kira, Evans, and Perrin over Dahms’s assertion
that Yonikuss was the person who committed the crime. (Appellant’s Brief at 21-
22).
{¶87} There is limited direct evidence linking Dahms to the Subway
restaurant break-in—namely, the surveillance video. (See State’s Ex. 17). While
the person seen in the surveillance video is unidentifiable, Detective Frankart
testified that Dahms matches the build of the person seen in that video. The
surveillance video was played for the jury, and the jury was able to observe Dahms
in the courtroom.
{¶88} Dahms contends that Yonikuss—who allegedly looks similar to
Dahms—committed the Subway restaurant break-in. However, Dahms’s self-
serving contention that Yonikuss is the perpetrator of the break-in is outweighed by
the evidence revealed by Detective Frankart’s investigation that: (1) Yonikuss was
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evading law enforcement because there was a warrant for his arrest; (2) Yonikuss
allegedly went to Wyoming prior to the break-in; (3) Dahms had motive to blame
Yonikuss after Yonikuss blamed Dahms for a prior theft; (4) Dahms did not allege
that Yonikuss is the perpetrator to anyone else; and (5) Dahms was the only person
to allege that Yonikuss is the perpetrator.
{¶89} Dahms further argues that the State’s theory of the case is belied by
the evidence that he did not have transportation from Findlay—where he was
allegedly staying with Thornton—to Fostoria, which is a 15-20 minute drive from
Findlay, to commit the Subway restaurant break-in. Aside from Dahms’s self-
serving version of events, Thornton is the only witness to allege to have seen Dahms
in Findlay the night of the break-in. While Thornton claimed that she saw Dahms
before she went to sleep between 10:00 p.m. and 1:00 a.m. on April 20 and right as
she woke up around 7:50 a.m. on April 21, 2015, the State presented evidence that
Thornton suffered several strokes and had difficulty remembering events. Likewise,
the State presented evidence that Thornton was easily manipulated and that Dahms
regarded Thornton as “retarded.” The jury was free to disbelieve Thornton’s
testimony, especially in light of the testimony of the other witnesses who said they
saw Dahms in Fostoria shortly after the Subway restaurant break-in, confessing to
the break-in. Moreover, at one point, Dahms asserted to Detective Frankart that he
was with Thompson and Jade at Thornton’s house the night of the break-in;
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however, Dahms did not offer a statement or the testimony of Thompson or Jade.
Nevertheless, the jury heard Detective Frankart’s interview of Thompson, who
could not be sure of what night she was with Dahms because she was intoxicated.
{¶90} Dahms also contends that the testimony of Kira, Evans, and Perrin is
unbelievable compared to Dahms’s version of events. Indeed, Dahms points to
weaknesses in Kira’s, Evans’s, and Perrin’s testimony, which Dahms argues
undermines their credibility. Dahms argues that the jury lost its way in concluding
that he was the person who committed the Subway restaurant break-in because
Kira’s testimony is not credible because she “was shown to be willing to lie just to
get [Dahms] in trouble.” (Appellant’s Brief at 21).
{¶91} However, the jury heard Detective Frankart’s testimony in which he
concluded Kira to be credible in her report that Dahms was the person who
committed the Subway restaurant break-in because Kira knew specific facts
regarding the break-in that were not available to the public, her story was consistent,
and she voluntarily called him to correct her statement when she realized that she
provided an incorrect date of when the break-in occurred. Moreover, Dahms’s
theory that Kira had a motive to lie because she was angry with him for ending their
relationship, and because she has a history of reporting Dahms to law enforcement
when she was angry with him, is belied by the evidence that Kira could have
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reported Dahms to law enforcement for the injuries she sustained when Dahms drug
her with his vehicle.
{¶92} Further, Dahms argues that Kira’s credibility is undermined by the
lack of evidence in Kira’s phone that Dahms called her a “snitch” as she reported to
law enforcement. However, the jury heard Kira’s recorded statement in which she
recalled that she could not remember whether Dahms called her a “snitch” through
text message or by phone conversation, but that she was adamant that Dahms called
her a snitch, and she testified to the same. The jury was free to infer whether Kira
was lying about the Subway restaurant break-in or revealing the truth.
{¶93} Moreover, Kady, Andy, Evans, and Perrin provided consistent
accounts to that of Kira’s linking Dahms to the break-in throughout Detective
Frankart’s investigation, and Kady, Evans, and Perrin testified to the same. Indeed,
Kira, Kady, Andy, and Evans indicated that they saw Dahms after the break-in and
that Dahms confessed to them to committing the break-in. Evans further indicated
that Dahms suggested to him prior to the break-in that he was going to “hit a lick,”
or steal money, later that day and asked him to join him. That Evans declined
Dahms’s offer is supported by the video surveillance, which depicts only one
perpetrator. Similarly, Perrin testified that Dahms admitted to him multiple times
that he committed the break-in. The jury was free to believe or disbelieve their
testimony.
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{¶94} Collectively, the State’s witnesses testified that Dahms was the person
who committed the break-in. While there were some issues with those witnesses’
credibility, “‘[t]he jury, as the trier of facts, “may believe or disbelieve any witness
or accept part of what a witness says and reject the rest.”’” Missler, 2015-Ohio-
1076, at ¶ 44, quoting State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-Ohio-
2128, ¶ 68, quoting State v. Antill, 176 Ohio St. 61, 67 (1964). “‘“A verdict is not
against the manifest weight of the evidence because the [jury] chose to believe the
State’s witnesses rather than the defendant’s version of the events.”’” Id., quoting
State v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15, quoting State v.
Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. In sum, Dahms’s
arguments concerning the evidence that he is not the person who committed the
Subway restaurant break-in are unpersuasive, especially compared to the weighty
evidence against him discussed above. As such, Dahms’s breaking-and-entering
conviction is not against the manifest weight of the evidence.
{¶95} Finally, Dahms’s attempted-complicity-to-tampering-with-evidence
conviction is not against the manifest weight of the evidence. R.C. 2921.12 sets
forth the offense of tampering with evidence and provides, in relevant part:
(A) No person, knowing that an official proceeding or investigation
is in progress, or is about to be or likely to be instituted, shall do any
of the following:
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(1) Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in
such proceeding or investigation;
R.C. 2921.12(A)(1). R.C. 2923.02, Ohio’s attempt-crime statute, provides, in
relevant part, “(A) No person, purposely or knowingly, and when purpose or
knowledge is sufficient culpability for the commission of an offense, shall engage
in conduct that, if successful, would constitute or result in the offense.” R.C.
2923.02(A). R.C. 2923.03 sets for the offense of complicity and provides, in
relevant part, “(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following: (1) Solicit or procure
another to commit the offense.” R.C. 2923.03(A)(1).
{¶96} Dahms does not point to any evidence that weighs against his
attempted-complicity-to-tampering-with-evidence conviction. Dahms’s letters and
the recordings of Dahms’s phone calls speak for themselves. The jury was able to
hear Dahms instruct multiple witnesses to discard potential evidence. Indeed,
Dahms can be heard instructing Evans to dispose of “trash,” which Evans stated
meant that Dahms wanted him to dispose of the hooded sweatshirt and the safe box.
Likewise, Dahms can be heard instructing Thornton to dispose of the letters in
which he bribed her to provide law enforcement with an alibi. For these reasons,
we reject Dahms’s argument.
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{¶97} Dahms’s first and second assignments of error are overruled.
Assignment of error No. III
Appellant received Ineffective Assistance of Trial Counsel.
{¶98} In his third assignment of error, Dahms argues that his trial counsel
was ineffective. In particular, he argues that his trial counsel was ineffective for
failing to assert that his right to a speedy trial was violated.
{¶99} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St. 3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St. 3d 673, 675
(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St. 3d 545, 558 (1995).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42
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Case No. 13-16-16
(1989), quoting State v. Lytle, 48 Ohio St. 2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S. Ct. 3135 (1978).
{¶100} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
{¶101} “When a claim of ineffective assistance of counsel is based on
counsel’s failure to file a particular motion, a defendant must show that the motion
had a reasonable probability of success.” State v. Ferguson, 10th Dist. Franklin No.
16AP-307, 2016-Ohio-8537, ¶ 11, citing State v. Carmon, 10th Dist. Franklin No.
11AP-818, 2012-Ohio-1615, ¶ 9 and State v. Barbour, 10th Dist. Franklin No.
07AP-841, 2008-Ohio-2291, ¶ 32, citing State v. Adkins, 161 Ohio App. 3d 114,
2005-Ohio-2577 (4th Dist.). Here, Dahms’s ineffective-assistance-of-counsel claim
centers on his trial counsel’s failure to file a motion to dismiss based on an alleged
violation of his right to a speedy trial. See State v. Matland, 7th Dist. Mahoning No.
09-MA-115, 2010-Ohio-6585, ¶ 15. As such, an analysis of Dahms’s third
assignment of error necessitates a review of the law pertaining to speedy-trial rights.
Id.
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{¶102} “An accused is guaranteed the constitutional right to a speedy trial
pursuant to the Sixth and Fourteenth Amendments of the United States Constitution
and Ohio Constitution, Article I, Section 10.” Ferguson at ¶ 12, citing State v.
Taylor, 98 Ohio St. 3d 27, 2002-Ohio-7017, ¶ 32. “Ohio’s speedy trial statutes,
found in R.C. 2945.71 et seq., were implemented to enforce those constitutional
guarantees.” Id., citing Brecksville v. Cook, 75 Ohio St. 3d 53, 55 (1996) and State
v. Blackburn, 118 Ohio St. 3d 163, 2008-Ohio-1823, ¶ 10. “The proper standard of
review in speedy trial cases is to simply count the number of days passed, while
determining to which party the time is chargeable, as directed in R.C. 2945.71 and
2945.72.” Id., citing State v. Jackson, 10th Dist. No. 02AP-468, 2003-Ohio-1653,
¶ 32, citing State v. DePue, 96 Ohio App. 3d 513, 516 (4th Dist.1994).
{¶103} “R.C. 2945.71 provides the timeframe for a defendant’s right to a
speedy trial based on the level of offense.” Matland at ¶ 19. “[A] person against
whom a charge of felony is pending shall be brought to trial within two hundred
seventy days after his arrest.” R.C. 2945.71(C)(2). “The date of the arrest is not
included for the purpose of calculating time under the statutes for a speedy trial.”
State v. Taylor, 3d Dist. Allen No. 1-13-46, 2014-Ohio-1793, ¶ 27, citing State v.
Huston, 3d Dist. Wyandot Nos. 16-05-23 and 16-05-24, 2006-Ohio-6857, ¶ 7.
{¶104} “However, each day the defendant spends in jail solely on the
pending criminal charge counts as three days.” Matland at ¶ 19, citing R.C.
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2945.71(E). “For purposes of this calculation, the Tenth District Court of Appeals
has clarified, ‘where more than one charge has arisen from a single transaction and
the multiple charges share a common litigation history from arrest onward,
incarceration on the multiple charges will be considered incarceration on the
‘pending charge’ for purposes of [R.C.] 2945.71(E).’” Id., quoting State v. Madden,
10th Dist. Franklin No. 04AP-1228, 2005-Ohio-4281, ¶ 29-30, citing State v.
Parsley, 82 Ohio App. 3d 567, 571, (10th Dist.1993). A defendant cannot benefit
from the “triple-count provision” under R.C. 2945.71(E) when he or she is being
held in jail on other charges. State v. Stephens, 9th Dist. Summit No. 26516, 2013-
Ohio-2223, ¶ 12, citing State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009-
Ohio-3924, ¶ 11, citing State v. MacDonald, 48 Ohio St. 2d 66 (1976), paragraph
one of the syllabus. See also State v. Brown, 64 Ohio St. 3d 476, 479-480 (1992).
“Instead, the 270-day time limit contained in R.C. 2945.71(C)(2) applies.” Stephens
at ¶ 12, citing State v. Richter, 9th Dist. Summit No. C.A. NO. 11799, 1985 WL
10977 (Feb. 13, 1985) and MacDonald at 71.
{¶105} “R.C. 2945.72 allows for an extension of the time that the accused
must be brought to trial under certain circumstances.” Taylor at ¶ 28. Excluded
from the speedy trial calculation is “[a]ny period of delay necessitated by reason of
a plea in bar or abatement, motion, proceeding, or action made or instituted by the
accused.” R.C. 2945.72(E). Also excluded from the speedy-trial calculation is
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“[t]he period of any continuance granted on the accused’s own motion, and the
period of any reasonable continuance granted other than upon the accused’s own
motion.” R.C. 2945.72(H).
{¶106} In this case, Dahms’s trial counsel was not ineffective for failing to
file a motion to dismiss alleging a violation of Dahms’s speedy-trial rights because
Dahms cannot demonstrate that the motion would have had a reasonable probability
of success. See Matland at ¶ 50 (concluding that Matland’s trial counsel was not
ineffective for failing to file a motion to dismiss based on an alleged violation of his
right to a speedy trial because that motion “would have failed unequivocally”).
{¶107} The speedy-trial clock began to run on August 7, 2015—the day after
which Dahms was arrested in this case—and ran for 56 days before speedy-trial
time was tolled as a result of multiple motions filed by Dahms delaying his trial.
(See Doc. Nos. 4, 22, 23, 26, 34, 35, 36, 37, 39, 43, 44, 45, 47, 50, 51, 52, 53, 56).4
4
Dahms was already in jail for other offenses when he was “arrested” on August 6, 2015 for the charges
underlying this case. (Doc. No. 4). As such, the speedy-trial clock began on August 7, 2015. Dahms filed
a motion on October 2, 2016 causing the speedy-trial clock to toll for the time necessary to adjudicate that
motion. (Doc. No. 22); R.C. 2945.72(E). However, before that motion could be adjudicated, Dahms
withdrew that motion on October 13, 2015. (Doc. No. 34). That same day, Dahms filed a motion to continue
trial, which the trial court granted and rescheduled trial for December 15-16, 2015. (Doc. Nos. 35, 37, 39).
See also R.C. 2945.72(H). On November 24, 2015, Dahms filed another motion tolling the speedy-trial clock
for the time necessary to adjudicate that motion. (Doc. No. 43); R.C. 2945.72(E). To adjudicate that motion,
the trial court held a hearing on December 4, 2015 in which the trial court granted Dahms’s motion and
scheduled an evidentiary hearing for December 17, 2015. (Doc. Nos. 51, 52). On November 30, 2015,
Dahms filed a third motion tolling the speedy-trial clock for the time necessary to adjudicate that motion.
(Doc. No. 44); R.C. 2945.72(E). Also, on November 30, 2015, Dahms filed a second motion to continue
trial, which the trial court granted. (Doc. Nos. 45, 47). After a hearing on December 4, 2015, the trial court
denied Dahms’s third motion on December 9, 2015. (Doc. Nos. 50, 53). After the December 17, 2015
evidentiary hearing, the trial court on December 22, 2015 rescheduled trial for April 26-28, 2016. (Doc. No.
56). See also R.C. 2945.72(H).
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Indeed, Dahms filed three motions tolling the speedy-trial clock for the time
necessary to adjudicate those motions—the last being timely disposed of on
December 22, 2015 after a December 17, 2015 evidentiary hearing. As such, at that
time, the only remaining matter was to reschedule Dahms’s trial as a result of
Dahms’s November 30, 2015 motion to continue trial, which was granted by the
trial court. The trial court rescheduled Dahms’s trial for April 26-28, 2016 in its
December 22, 2015 entry. “[I]t is well-established that a defense motion to continue
trial tolls the speedy trial clock until the rescheduled trial date.” State v. Caulton,
7th Dist. Mahoning No. 09 MA 140, 2011-Ohio-6636, ¶ 33, citing R.C. 2945.72(H)
and State v. Brown, 7th Dist. Mahoning No. 03 MA 32, 2005-Ohio-2939, ¶ 41. See
also State v. Quinnie, 10th Dist. Franklin No. 12AP-484, 2013-Ohio-1208, ¶ 8.
Accordingly, the speedy-trial clock was tolled until the rescheduled trial date.
{¶108} Thus, even if we assume without deciding that Dahms benefitted
from the “triple-count provision” under R.C. 2945.71(E), Dahms was brought to
trial well-within 90 days because the speedy-trial clock ran only 56 days. Therefore,
Dahms cannot demonstrate that a motion to dismiss alleging a speedy-trial rights
violation would have had a reasonable probability of success. Because Dahms
cannot demonstrate that a motion to dismiss alleging a speedy-trial rights violation
would have had a reasonable probability of success, Dahms’s ineffective assistance
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of counsel claim fails. See State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-
Ohio-4183, ¶ 34.
{¶109} Dahms’s third assignment of error is overruled.
Assignment of Error No. IV
Appellant’s right to due process was violated as the State failed to
disclose exculpatory evidence it had in its possession.
{¶110} In his fourth assignment of error, Dahms argues that he was denied
due process of law because the State failed to disclose 181 jailhouse calls. It appears
that Dahms is arguing that the State’s failure to disclose those jailhouse calls
amounted to a “Brady violation.”
{¶111} “‘[S]uppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.’” State
v. Davis, 116 Ohio St.3d, 2008-Ohio-2, ¶ 338, quoting Brady v. Maryland, 373 U.S.
83, 87, 83 S. Ct. 1194 (1963). However, the United States Supreme Court later
clarified, “‘The rule of Brady * * * arguably applies in three quite different
situations. Each involves the discovery, after trial, of information which had been
known to the prosecution but unknown to the defense.’” (Emphasis added.) State
v. Wickline, 50 Ohio St. 3d 114, 116 (1990), quoting United States v. Agurs, 427
U.S. 97, 103, 96 S. Ct. 2392 (1976).
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{¶112} As an initial matter, Dahms’s reliance on Brady is misplaced because
Brady involves the discovery of evidence after trial. See State v. Jackson, 10th Dist.
Franklin No. 02AP-867, 2003-Ohio-6183, ¶ 24. Based on the United States
Supreme Court’s clarification regarding the scope of Brady, the Supreme Court of
Ohio concluded that “no Brady violation occurs when evidence is discovered and
presented during the trial.” State v. Wilson, 3d Dist. Union No. 14-13-04, 2013-
Ohio-4643, ¶ 22, citing Wickline at 116. Dahms concedes that he received the
jailhouse phone calls prior to the start of trial. (See Appellant’s Brief at 26). (See
also Apr. 26, 2016 Tr., Vol. I, at 111). As such, no Brady violation exists. See State
v. Hanna, 95 Ohio St. 3d 285, 2002-Ohio-2221, ¶ 82.
{¶113} Nonetheless, Dahms argues that the trial court erred when it denied
his oral motion to continue trial for the purpose of investigating whether the State
withheld exculpatory evidence. “When a defendant discovers that the State
withheld potentially exculpatory evidence during the course of the trial proceedings,
and not after, Crim.R. 16(L), and not Brady, governs.” Wilson at ¶ 22, citing
Wickline at 116-117.5 Crim.R. 16(L) provides, in relevant part:
The trial court may make orders regulating discovery not inconsistent
with this rule. If at any time during the course of the proceedings it is
5
When the Supreme Court of Ohio issued its decision in State v. Wickline, “the applicable Rule of Criminal
Procedure governing discovery sanctions was Crim.R. 16(E)(1).” State v. Wilson, 3rd Dist. Union No. 14-
13-04, 2013-Ohio-4643, ¶ 22, fn.1. “However, Rule 16 of the Rules of Criminal Procedure was subsequently
amended on July 1, 2010, and the current section governing discovery sanctions is Crim.R. 16(L)(1).” Id.
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brought to the attention of the court that a party has failed to comply
with this rule * * *, the court may order such party to permit the
discovery or inspection, grant a continuance, or prohibit the party
from introducing in evidence the material not disclosed, or it may
make such other order as it deems just under the circumstances.
Crim.R. 16(L)(1).
{¶114} “‘The trial court has discretion to regulate discovery in a manner
consistent with Crim.R. 16.’” State v. Mobley, 2d Dist. Montgomery No. 26858,
2016-Ohio-4579, ¶ 23. As such, we review a trial court’s response to allegations of
noncompliance with the criminal-discovery rules under an abuse-of-discretion
standard. See State v. Wilson, 192 Ohio App. 3d 189, 2011-Ohio-155, ¶ 54 (11th
Dist.), citing Crim.R. 16(L)(1), State v. Wiles, 59 Ohio St. 3d 71, 78 (1991), State v.
Parson, 6 Ohio St. 3d 442, 445 (1983), and State v. Edwards, 49 Ohio St. 2d 31, 42
(1976). See also State v. Adams, 7th Dist. Mahoning No. 00 CA 211, 2006-Ohio-
1761, ¶ 40, citing Parson at 445.
{¶115} It appears that Dahms is arguing that the trial court abused its
discretion by denying his motion to continue trial because that penalty “would have
been the least restrictive means to correct the non-disclosure.” (Appellant’s Brief
at 26). When determining whether to impose a discovery-rule sanction, “‘[a] trail
court must inquire into the circumstances surrounding a discovery rule violation and
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* * * must impose the least severe sanction that is consistent with the purpose of the
rules of discovery.’” State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966,
syllabus, quoting Lakewood v. Papadelis, 32 Ohio St. 3d 1 (1987), paragraph two of
the syllabus. The Supreme Court of Ohio identified three factors that a trial court
should consider when a discovery violation is alleged: “(1) whether the failure to
disclose was a willful violation of Crim.R. 16; (2) whether foreknowledge of the
undisclosed material would have benefitted the accused in the preparation of a
defense; and (3) whether the accused was prejudiced.” Id. at ¶ 35, citing Parson at
syllabus.
{¶116} In this case, the trial court inquired into the circumstances
surrounding the alleged Crim.R. 16 violation as it is required to do. See State v.
Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 11(“‘[A] trial court must
inquire into the circumstances producing [an] alleged violation of Crim.R. 16.’”),
quoting State v. Bellomy, 9th Dist. Wayne No. 97CA0036, 1998 WL 161292, *2
(Apr. 8, 1998). Dahms’s trial counsel represented to the trial court that he
“receive[d] a disc from the sheriff’s department that contains possibly hundreds and
hundreds of audio files * * * never heard.” (Apr. 26, 2016 Tr., Vol. I, at 111). He
continued, “I found a reference in the audio [which was provided by the State] after
examining many, many hours * * * of audio of my client that referred to I think nine
other phone calls. So I asked my client about nine other phone calls, and that’s
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when he started telling me there’s many, many other calls that we’ve never heard
and that were never produced to me.” (Id. at 112). In response, the State indicated
that it “provided all of the calls that [it] deem[ed] relevant that [it] intend[s] to use”
because “there are hundreds of phone calls, and [the State] do[es] not have the
resources to listen to every single phone call made from jail on every single one of
[its] cases.” (Id. at 114-115). The State added that
this case has been ongoing since August of 2015. We actually
prepared for trial, it as originally set for trial, in October of 2015. Had
[Dahms’s trial counsel] requested [the State] certainly would have
done so.
However, he waited until the night before trial to request all of these.
(Id. at 115). Ultimately, Dahms’s trial counsel requested that the trial court “pause
the trial and come back and resume it” or in the alternative to sanction the State by
preventing it “from putting on any evidence related to this audio or testimony that
could be in the audio.” (Id. at 119). The trial court agreed that the appropriate
sanction is to prevent the State from using “anything that hasn’t been provided in
discovery.” (Id. at 120). As such, the trial court denied Dahms’s motion to continue
trial. (See id. at 121).
{¶117} Even if we assume without deciding that the jailhouse phone calls are
properly discoverable evidence, the trial court did not abuse its discretion by
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imposing the discovery-rule-violation sanction prohibiting the State from using any
evidence that may be contained in the jailhouse calls. First, we note that Dahms
requested that the trial court either continue trial or prohibit the State from using the
jailhouse calls not provided through discovery as evidence. That Dahms now
complains on appeal that the trial court selected from Dahms’s proposed remedies
is invited error. See State v. Cunigan, 195 Ohio App. 3d 162, 2011-Ohio-4010, ¶ 12
(2d Dist.), citing Daimler/Chrysler Truck Fin. v. Kimball, 2d Dist. Champaign No.
2007-CA-07, 2007-Ohio-6678, ¶ 40, citing 5 Ohio Jurisprudence 3d, Appellate
Review, Section 448, at 170-171 (1999, Supp.2007). “‘The “invited error doctrine”
holds that a party will not be permitted to take advantage of an error which he
himself invited or induced the court to make.’” State v. Arnold, 3d Dist. Seneca No.
13-16-13, 2017-Ohio-326, ¶ 12, quoting State v. Ritch, 4th Dist. Scioto No.
97CA2491, *4 (May 11, 1998), citing State ex rel. O’Berine v. Geauga Cty. Bd. of
Elections, 80 Ohio St. 3d 176, 181 (1997) and State ex rel. Bitter v. Missig, 72 Ohio
St.3d 249, 254 (1995). See also State v. Monnette, 3d Dist. Marion No. 9-08-33,
2009-Ohio-1653, ¶ 12, citing State v. Ransom, 3d Dist. Van Wert No. 15-06-05,
2006-Ohio-6490, ¶ 14.
{¶118} Nevertheless, the trial court did not abuse its discretion by denying
Dahms’s motion to continue trial. As with its regulation of discovery under Crim.R.
16, “[t]he trial court has broad discretion to grant or deny a motion for a
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continuance.” State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366,
¶ 38, citing State v. Bones, 2d Dist. Montgomery No. 26017, 2015-Ohio-784, ¶ 61.
“In exercising its discretion, a trial court should consider ‘the length of the delay
requested; whether other continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing counsel and the court; whether the
requested delay is for legitimate reasons or whether it is dilatory, purposeful, or
contrived; whether the defendant contributed to the circumstance which give [sic]
rise to the request for a continuance; and other relevant factors, depending on the
unique facts of each case.’” Id., quoting State v. Bocock, 2d Dist. Montgomery No.
22481, 2008-Ohio-5641, ¶ 23.
{¶119} As we previously noted, Dahms was granted two continuances in this
case. The State informed the trial court that Dahms’s trial counsel had in his
possession in August 2015 the audio tapes from which Dahms’s trial counsel
claimed to have learned of the existence of the other jailhouse calls. Yet, Dahms’s
trial counsel waited until April 2016—just before trial—to review those recordings.
Likewise, Dahms’s trial counsel revealed that he learned from Dahms of the
additional calls just prior to the commencement of trial—a conversation that could
have occurred in the months leading up to trial. It is also unclear why Dahms did
not reveal to his trial counsel the existence of those jailhouse calls—or whether there
is potentially exculpatory evidence contained in those calls—prior to the time his
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trial was to commence. Accordingly, we conclude that the trial court did not abuse
its discretion by denying Dahms’s motion to continue trial. See Bressi, 2016-Ohio-
5211, at ¶ 23 (concluding that the trial court did not abuse its discretion by denying
Bressi’s motion to continue trial because “he waited until the afternoon before his
rescheduled trial date to bring the issue of the recordings to the court’s attention”
and “[i]t is pure speculation that any additional questioning of the witnesses would
have caused [the State’s witness] to change his testimony”).
{¶120} Therefore, we conclude that the trial court did not abuse its discretion
by preventing the State from using the jailhouse calls not provided through
discovery as evidence—that is, imposing the least severe sanction that it determined
to be consistent with the purpose of the rules of discovery.
{¶121} Dahms’s fourth assignment of error is overruled.
Assignment of Error No. V
The Trial Court erred in ordering Appellant to serve a mandatory
term of Post-Release Control.
{¶122} In his fifth assignment of error, Dahms argues that the trial court
erred by ordering him to serve a mandatory period of post-release control. More
specifically, Dahms argues that the trial court erred by imposing a mandatory three-
year period of post-release control as to his bribery and intimidation-of-a-witness-
in-a-criminal-case convictions because those offenses are not offenses of violence.
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{¶123} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶124} Ohio’s post-release control statute is codified under R.C. 2967.28.
R.C. 2967.28 “defines whether a term of post-release control is mandatory or
discretionary with the parole board and sets forth the length of the term, depending
on the degree of felony and whether the offense is a felony sex offense.” State v.
Threats, 7th Dist. Jefferson No. 15JE0005, 2016-Ohio-8478, ¶ 16, citing R.C.
2967.28(B), (C). “For instance, post-release control is mandatory when a prison
term is imposed for a felony of the first degree, a felony of the second degree, a
felony sex offense, or a felony of the third degree that is an offense of violence.”
Id., citing. R.C. 2967.28(B). “For a felony of the first degree or for a felony sex
offense, the term of post-release control must be five years.” Id., citing R.C.
2967.28(B)(1). “Unless the offense is a felony sex offense, the term of post-release
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control is a mandatory three years for a second degree felony or third degree felony
offense of violence.” Id., citing R.C. 2967.28(B)(2).
{¶125} “If a prison sentence is imposed for a felony of the third degree that
is not a felony sex offense and is not an offense of violence, then the parole board
has the discretion to impose post-release control for ‘up to three years.’” Id. at ¶ 17,
citing R.C. 2967.28(C).
{¶126} Dahms challenges the trial court’s imposition of a mandatory three-
year period of post-release control as to his bribery and intimidation-of-a-witness-
in-a-criminal-case convictions. The State concedes that the trial court erred by
ordering Dahms to serve a mandatory three-year term of post-release control as to
his bribery conviction. We agree. Dahms was convicted of bribery under R.C.
2921.02(C), a third-degree felony. Bribery under R.C. 2921.02(C) is not a felony
sex offense or an offense of violence. See R.C. 2901.01(A)(9) (defining offense of
violence).
{¶127} However, we reject Dahms’s argument regarding his intimidation-
of-a-witness-in-a-criminal-case conviction under R.C. 2921.04(B)(2).
Intimidation-of-a-witness-in-a-criminal-case conviction under R.C. 2921.04(B)(2)
is an offense of violence. See R.C. 2901.01(A) (including violations of R.C.
2921.04 in the definition of “offense of violence”). Therefore, the trial court
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properly imposed the mandatory three-year period of post-release control as part of
Dahms’s sentence as to his intimidation-of-a-witness-in-a-criminal-case conviction.
{¶128} Dahms’ fifth assignment of error is overruled in part and sustained in
part.
{¶129} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued in assignments of error one, two, three, four, and
five, in part, we affirm the judgment of the trial court. Having found error
prejudicial to the appellant herein in the particulars assigned and argued in
assignment of error five, in part, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
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