State v. Harner , 2020 Ohio 1184 ( 2020 )

[Cite as State v. Harner, 2020-Ohio-1184.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-05-011
: OPINION
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:
JERRY WAYNE HARNER, SR., :
Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 18-500-220
Richard W. Moyer, Clinton County Prosecuting Attorney, Katie Wilkin, 103 E. Main Street,
Wilmington, Ohio 45177, for appellee
Jeffrey W. Stueve, 530 N. Broadway Street, Lebanon, Ohio 45036, for appellant
PIPER, J.
{¶ 1} Appellant, Jerry Harner Sr., appeals his conviction and sentence in the Clinton
County Court of Common Pleas for receiving stolen property and for having weapons while
under a disability.
{¶ 2} In late July 2016, retired Ohio State Highway Trooper James Sears was
driving past a residence on Nauvoo Road in Clinton County. As he drove by, Sears saw a
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1968 Thunderbird camper he owned and had previously reported stolen sitting in a
driveway. Sears pulled into the driveway and called the sheriff's office. An investigation
was conducted and in October 2016, a search warrant was performed on the property.
During the search, officers discovered several other stolen items on the property, including
a 2003 Harley Davidson motorcycle, a 2016 United box trailer, a United UTX box trailer and
a 2016 Honda dirt bike. In addition, multiple firearms were discovered in the residence,
including several in the master bedroom.
{¶ 3} Harner was charged with several fourth- and fifth-degree counts of receiving
stolen property and with a charge of having weapons under disability based on firearms that
were found in the residence.
{¶ 4} At trial, the property owners testified that their property had been stolen.
Clinton County Sheriff's Detective Douglas Eastes testified regarding the search warrant
and the items that were discovered during the search. Eastes and an expert from the
National Insurance Crime Bureau ("NICB") explained how they determined the items were
stolen, based on identifying marks, including the use of identifying marks not known to the
public. In addition, the detective testified to discovering items with ground-off Vehicle
Identification Numbers (VIN) which were replaced with a homemade stamp comprised of
letters and numbers. The detective testified that when the numbers in the homemade stamp
were disregarded, the letters spelled "H-A-R-N-E-R."
{¶ 5} A sheriff's deputy who assisted in the search testified and discussed the
discovery of firearms in a farmhouse on the property. He stated that he test fired some of
the weapons and determined they were operable. He also testified that he determined
Harner and Rebecca Martin, Harner's girlfriend, were living in the home based on items
found in the master bedroom, which included men's and women's clothes, a shoe box with
male and female sex toys, and credit cards with Harner's name and Martin's name on them.
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{¶ 6} Detective Eastes testified that he was concerned with the discovery of
firearms in the house because he was aware that Harner had a previous drug conviction
which precluded him from possessing firearms. Eastes indicated that he also interviewed
some of the people on the scene during the search warrant. He testified that Martin, despite
having some of her property in the house, told him Harner lived in the house, but she did
not. Eastes testified that Harner was not present during the search, and the detective
attempted to make contact later, but Harner did not return messages.
{¶ 7} Detective Eastes also testified that he spoke with a relative, Virginia Wallace,
during execution of the search warrant. Wallace told Eastes that she and her son lived in
a trailer which shares a common driveway with the farmhouse. Wallace told him that Martin
and Harner lived at the farmhouse.
{¶ 8} At trial, Martin testified that she lived at the residence on Nauvoo Road with
children she has with Harner. She testified that she has a business and acquires vehicles
for salvage parts. She stated that Harner worked for her doing auto repair and service. She
testified that she bought some of the items at issue from other people and other items were
dropped off at the property for work to be performed on them. When questioned, she
indicated she did not have any documentation with her to support her statements.
{¶ 9} According to Martin, at one point, Harner was living on the property, but he
agreed to move out so she could live there with the children. She did not remember exactly
when she moved in, but only that she was living in the house in August 2016 when the
children started school. She testified that Harner often came back to the property to see
his sons, but he did not live there.
{¶ 10} Harner testified that in the spring and summer of 2016, he was in the process
of moving out of the property. He stated that he did not have a fixed address, but he was
not on the property on July 27, 2016. He indicated that he performs work for Martin on the
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property, but did not bring any documents, such as 1099 forms, to show his employment by
Martin.
{¶ 11} A jury found Harner guilty of four counts of fourth-degree receiving stolen
property, one count of fifth-degree receiving stolen property and the third-degree felony
weapons under disability charge. He was sentenced to 12 months on each of the fourth-
degree felonies, 6 months on the fifth-degree felony and 14 months on the third-degree
felony. All of the sentences were ordered to run concurrently, for an aggregate sentence
of 14 months.
{¶ 12} Harner now appeals his conviction and sentence, raising five assignments of
error for our review. For ease of discussion, we begin by addressing Harner's third
assignment of error.
{¶ 13} III. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE
CONVICTIONS AND THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 14} When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence in order to determine whether such
evidence, if believed, would support a conviction. State v. Workman, 12th Dist. Clermont
Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 20. The relevant inquiry is
"whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-
2321, ¶ 22.
{¶ 15} To determine whether a conviction is against the manifest weight of the
evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
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resolving the 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. State v. Bradbury,
12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17. An appellate court will
overturn a conviction due to the manifest weight of the evidence only in extraordinary
circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id.
at ¶ 18. A determination that a conviction is supported by the manifest weight of the
evidence will also be dispositive of the issue of sufficiency. State v. Peyton, 12th Dist. Butler
No. CA2015-06-112, 2017-Ohio-243, ¶ 48.
{¶ 16} In this assignment of error, Harner first argues that the evidence did not
support his conviction for receiving stolen property. Specifically, he argues that the
evidence does not support a finding that he received, retained of, or knew that the property
was stolen. He contends that there is no evidence he was present during any of the theft
offenses, nothing contradicts his testimony that he was not there when the items were
dropped off, there was a reasonable explanation why the items were on the property, there
were numerous items on the property and only a small percent were identified as stolen
and there was a significant length of time between the time some of the items were stolen
and when they were discovered on the property. He further argues that it took a special
expert to determine some of the items were stolen and so it would be difficult for him as a
layperson to determine if the items were stolen. Finally, he argues that the only evidence
of receipt or retention was that he was a resident of the home on Nauvoo Road, and this
determination was made on conclusory or hearsay evidence.
{¶ 17} R.C. 2913.51 defines the offense of receiving stolen property and provides
that "[n]o person shall receive, retain, or dispose of property of another knowing or having
reasonable cause to believe that the property has been obtained through commission of a
theft offense." A person has "reasonable cause to believe" property was obtained through
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a theft offense when, "'after putting oneself in the position of this defendant, with his
knowledge, lack of knowledge, and under the circumstances and conditions that
surrounded him at the time, the acts and words and all the surrounding circumstances would
have caused a person of ordinary prudence and care to believe that the property had been
obtained through the commission of a theft offense.'" State v. Pangburn, 12th Dist.
Clermont No. CA2015-11-095, 2016-Ohio-3286, ¶ 15, quoting State v. Collins, 10th Dist.
Franklin No. 11AP-130, 2012-Ohio-372, ¶ 12. "Absent an admission by a defendant, the
question of whether the defendant had reasonable cause to believe an item was stolen can
only be proved by circumstantial evidence." State v. Rivera, 12th Dist. Butler No. CA2012-
11-220, 2013-Ohio-3203, ¶ 9.
{¶ 18} "Because guilty knowledge may be inferred from the unexplained, or
unsatisfactorily-explained, receipt of stolen property, it is appropriate, in weighing this type
of evidence, to consider the personal interest and motivation of a defendant who tries to
distance himself from such items upon discovery." State v. Emery, 6th Dist. Lucas No. L-
11-1228, 2013-Ohio-208, ¶ 25. Moreover, "[u]nder the 'reasonable cause to believe'
standard of R.C. 2913.51(A), a denial of knowledge is tested for reasonableness against
the context in which the denial is made." Id. A court "may also consider obvious gaps or
discrepancies in a putative explanation, its vagueness, and whether any attempt was made
to corroborate or prove it when the opportunity existed." Id.{¶ 19} The evidence presented at trial showed that the items were stolen and Harner
did not have permission to use them. Although Martin and Harner both testified that they
did not know the items were stolen, several of the items had identifying marks and numbers
tampered with. Some of the vehicles had homemade VIN numbers to replace the ground-
off original numbers. Others had stickers which left indications that the VINs had been
removed in order to hide their identity. Other items had been painted. In addition, although
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Martin and Harner both gave explanations regarding where the items came from, several
of the explanations were vague and without corroborating evidence. While the NICB expert
testified regarding how he determined the items were stolen, much of this testimony
involved techniques used to discover identifying marks and to locate the original owner.
The fact that an expert was necessary to locate owners does not negate the fact that on
examination, it was apparent that steps had been taken to conceal identifying marks on the
property.
{¶ 20} With regard to Harner’s residence at the property, the state presented
evidence that Harner’s name was on the lease to the property and on an eviction action
which was instituted in 2017. In addition, the state presented evidence that men’s clothing
was found in the master bedroom of the house, along with male sex toys and a credit card
with Harner’s name on it.
{¶ 21} Witnesses testified that Harner was on the property and that he lived there.
Deputy Boris testified that he had responded to a dispute on the property in 2015 and
Harner indicated he lived in the farmhouse.
{¶ 22} Harner argues Sears' testimony that Harner was on the property when Sears
saw his stolen camper was contradictory. However, when read in context, the testimony
reveals otherwise. Sears testified that he drove by slowly and hit his brakes when he
recognized the camper as his, and he initially did not recognize any of the people on the
property who ran away. He testified, however, that when one of the people he had seen
running away came walking from behind the house, in the backyard, and circled behind
him, Sears recognized Harner. Sears indicated Harner's clothes, gait, height, and weight
matched one of the people he had seen running away. Sears also testified that he lived in
the area, knew Harner as a neighbor, and would see him almost daily.
{¶ 23} After reviewing the transcripts and evidence submitted in this case, we find
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Harner's convictions for receiving stolen property were not against the manifest weight of
the evidence. The state produced evidence, which if believed would support the convictions.
While Harner and Martin provided explanations of why and how the stolen items were on
the property, when there is a conflict in the testimony of witnesses, it is for the trier of fact
to determine the weight and credibility to be given to such evidence. State v. Marcum, 12th
Dist. Butler No. CA2017-05-057, 2018-Ohio-1009, ¶ 31, citing State v. DeHass, 10 Ohio St.
2d 230, paragraph one of the syllabus. The jury, as the trier of fact, was free to believe all,
part, or none of testimony of each witness. State v. Tanner, 12th Dist. Butler No. CA2018-
04-088, 2019-Ohio-1193, ¶ 38.
{¶ 24} Harner also argues that his conviction for having weapons under disability
was not supported by sufficient evidence and was against the manifest weight of the
evidence. R.C. 2923.13 provides that "no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance" if the person has been convicted of a felony drug
offense.
{¶ 25} Harner argues that the evidence does not support a finding that he acquired,
held, carried, or used firearms because the evidence does not support a finding that he was
a resident of the home where the firearms were found. However, as discussed above,
evidence was presented that if believed, established that Harner lived in the house where
the firearms were found.
{¶ 26} Accordingly, we find that Harner's convictions for receiving stolen property
and having weapons while under a disability were not against the manifest weight of the
evidence. Because we have determined the convictions are not against the manifest weight
of the evidence, they are also supported by sufficient evidence. Appellant's third
assignment of error is overruled.
{¶ 27} I. THE APPELLANT WAS DENIED A FAIR TRIAL BY STATEMENTS MADE
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BY THE PROSECUTOR DURING CLOSING ARGUMENTS.
{¶ 28} Harner argues that the prosecutor made improper comments during closing
arguments imputing Martin's actions to him and that he would not have been convicted if
Martin's actions had not been imputed to him.
{¶ 29} The state is entitled to a certain degree of latitude in making its closing
remarks. State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 58.
For a conviction to be reversed because of prosecutorial misconduct, a defendant must
prove the prosecutor's acts were improper and that they prejudicially affected the
defendant's substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 62.
To demonstrate prejudice, a defendant must show that the improper acts were so prejudicial
that the outcome of the trial would clearly have been otherwise had they not occurred. State
v. Jones, 12th Dist. Butler No. CA2006-11-298, 2008-Ohio-865, ¶ 21. The focus of "an
inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon
the culpability of the prosecutor." State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-
Ohio-4769, ¶ 57. As such, prosecutorial misconduct "is not grounds for error unless the
defendant has been denied a fair trial." State v. Olvera-Guillen, 12th Dist. Butler No.
CA2007-05-118, 2008-Ohio-5416, ¶ 27.
{¶ 30} In the comments Harner argues were improper and prejudicial, the prosecutor
stated that Harner was running a "chop-shop" with his girlfriend and discussed Martin's
credibility and the fact that charges against her had been dismissed, but she would "have
her day in court." Harner further argues that he was prejudiced by comments that Martin
and Harner were trying to "pull the wool over your eyes because they think they're smarter
than everyone else" and "can make fake documents and pass them off at the BMV in order
to cover their tracks." The prosecutor further commented that when the detective was called
to the stand on rebuttal, Harner and Martin "couldn't quit talking and looking at each other"
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because they knew Eastes had items to prove they lied to the jury.
{¶ 31} Harner's counsel did not object to these comments at trial and we are
therefore limited to a review for plain error. State v. Warwick, 12th Dist. Preble No. CA2017-
01-001, 2018-Ohio-139, ¶ 30. Crim.R. 52(B) provides that "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." Plain error does not exist unless the error is obvious and, but for the error, the
outcome of the trial would have been different. State v. Yanez, 12th Dist. Butler No.
CA2016-10-190, 2017-Ohio-7209, ¶ 23. Notice of plain error is taken with the utmost
caution, under exceptional circumstances, and only to prevent a manifest miscarriage of
justice. State v. Grisham, 12th Dist. Warren No. CA2013-12-118, 2014-Ohio-3558, ¶ 38.
Prosecutorial misconduct may rise to the level of plain error only if it is clear from the record
that the defendant would not have been convicted in the absence of the improper
comments. State v. Isreal, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474, ¶ 43.
{¶ 32} In context, the prosecutor's comments did not impute Martin's actions to
Harner, but instead were an attempt to focus the jury on Harner's culpability, not Martin's.
Martin's testimony attempted to explain the items' presence on the property and that Harner
was not involved. However, her testimony was at times vague, confusing, and was
contradicted by other evidence. The prosecutor's comments merely instructed the jury to
look at Harner's guilt and not Martin's. Moreover, a prosecutor may comment on a
defendant's reaction to the evidence presented, his demeanor and body language. State
v. Green, 90 Ohio St.3d 352, 373; State v. Erker, 8th Dist. Cuyahoga No. 107790, 2019-
Ohio-3185, ¶ 121.
{¶ 33} Harner also argues that the prosecutor improperly commented on the fact that
Martin and Harner knew the trial was coming and had time to prepare documents to support
their claims that items were dropped off for work to be performed or purchased for the
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business. Counsel objected to this comment and the trial court sustained the objection.
{¶ 34} This statement was a reflection of questions asked of Harner and Martin on
cross-examination regarding whether they had documents to support their testimony that
Martin was operating a business, Harner was working for her, and that the stolen items had
been purchased or dropped off for work to be performed. Both claimed that they had
documentation to support their testimony, but they did not bring it to trial. After the court
sustained the objection, the prosecutor then continued and clarified that Harner did not have
the burden of proof in the case, but he did not submit any evidence to support his testimony.
{¶ 35} We find no error in the prosecutor's comments. The trial court sustained an
initial objection and the prosecutor then clarified that Harner did not have the burden of
proof. The following discussion in closing arguments related to the believability and
credibility of the testimony. Accordingly, because we find no error in the comments, Harner
has not established prosecutorial misconduct in closing arguments. Harner's first
assignment of error is overruled.
{¶ 36} II. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.
{¶ 37} In his second assignment of error, Harner argues that trial counsel was
ineffective for failing to object to inadmissible hearsay and improper arguments by the
prosecutor. He also argues counsel was ineffective for failing to introduce exculpatory
evidence or to proffer evidence.
{¶ 38} To prevail on an ineffective assistance of counsel claim, an appellant must
show his trial counsel's performance was deficient, and that he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's
performance will not be deemed deficient unless it fell below an objective standard of
reasonableness. Id. at 688. To show prejudice, appellant must establish that, but for his
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trial counsel's errors, there is a reasonable probability that the result of his trial would have
been different. Id. at 694.
{¶ 39} A strong presumption exists that a licensed attorney is competent and that the
challenged action is the product of sound trial strategy and falls within the wide range of
professional assistance. Id. at 689. While the wisdom of a given strategy may be
debatable, trial tactics, even "debatable trial tactics," do not constitute a denial of effective
assistance of counsel. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 146.
{¶ 40} Harner argues that counsel was ineffective for repeatedly failing to object to
inadmissible hearsay. He argues he was prejudiced because the only evidence that he
lived at the farmhouse on the property was inadmissible hearsay. The statements made by
the detective and deputy during the performance of the search warrant detailed steps taken
during their investigation, including viewing records that indicated Harner lived on the
property and speaking to others, including Wallace, who stated that Harner lived in the
farmhouse.
{¶ 41} We first note that despite Harner's argument to the contrary, there was other
evidence presented that indicated Harner lived on the property. In fact, Harner himself
admitted that he lived on the property, but stated that he was in the process of moving out
in the spring and summer of 2016. Given the fact that there is evidence that Harner at some
point lived on the property, even assuming the statements were hearsay, trial counsel may
have chosen not to object to the statements and to instead rely on testimony from Harner
and Martin that Harner was not living on the property when the stolen items and firearms
were discovered. It is not the role of the appellate court to second-guess the strategic
decisions of trial counsel, including whether to object. State v. Debord, 12th Dist. Clinton
No. CA2019-03-003, 2020-Ohio-57, ¶ 31.
{¶ 42} Harner also argues that trial counsel was ineffective for failing to present
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exculpatory evidence. Harner claims that a folder of titles, work orders, receipts and
affidavits were submitted to trial counsel, but not presented as evidence. However, any
argument as to the effect of this evidence is speculative as this evidence is not in the record.
If counsel found the documentation to be less than authentic or genuine, it would be a matter
of sound trial strategy to not use the documents at trial.1 Establishing the prejudice from
the failure to submit this evidence at trial would require proof outside the record, which is
not appropriately considered on direct appeal. State v. Hartman, (2001), 93 Ohio St.3d
274, 299.
{¶ 43} Accordingly, we find no merit to Harner's arguments that trial counsel was
ineffective and his second assignment of error is overruled.
{¶ 44} IV. THE SENTENCE IMPOSED IS CLEARLY CONTRARY TO LAW.
{¶ 45} In his fourth assignment of error, Harner contends that his sentence for having
weapons under disability is contrary to law because it is outside the statutory range.
{¶ 46} An appellate court reviews the imposed sentence according to R.C.
2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. R.C. 2953.08(G)(2) provides that an appellate court can modify or
vacate a sentence only if the appellate court finds 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.
{¶ 47} Having weapons while under disability is a third-degree felony. R.C.
2923.13(B). The possible sentences for a third-degree felony are 9, 12, 18, 24, 30 or 36
months. R.C. 2929.14(A)(3)(b). The trial court imposed a 14-month sentence for the
1. We further note counsel is not permitted to offer evidence he knows to be false and may refuse to offer
evidence in a criminal matter that he reasonably believes is false. Prof.Cond.R. 3.3(a)(3).
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offense, which is contrary to law.
{¶ 48} Appellant acknowledges that he realizes the court may increase the sentence,
but argues increasing the sentence would not be appropriate and instead asks this court to
modify the sentence by reducing it to 12 months. The state acknowledges that the sentence
is contrary to law, but asks this court to modify the sentence by increasing to the next highest
available term, which is 18 months.
{¶ 49} While an appellate court has the power to modify a sentence on appeal, in
this case, we find the appropriate course of action is to vacate the sentence and to remand
the case for the trial court to impose a sentence within the allowable range. Accordingly,
we find Harner's fourth assignment of error has merit. The 14-month sentence imposed for
having weapons under a disability is vacated and the case is remanded for the trial court to
impose one of the prison terms set forth in R.C. R.C. 2929.14(A)(3)(b).
{¶ 50} V. THE CUMULATIVE EFFECT OF THE ERRORS OF THE TRIAL COURT
PREVENTED THE APPELLANT FROM RECEIVING A FAIR TRIAL.
{¶ 51} Under the doctrine of cumulative error, "a conviction will be reversed where
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a
fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal." State v. McClurkin, 12th Dist. Butler No. CA2007-03-071,
2010-Ohio-1938, ¶ 105; State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 140.
Harmless or nonprejudicial errors cannot become prejudicial by sheer weight of numbers
alone. See State v. Hill, 75 Ohio St.3d 195, 212, 1996-Ohio 222 (1996).
{¶ 52} In addition, "[i]t is not enough simply to intone the phrase 'cumulative error.'"
State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 197. Without analysis or
explanation as to why or how the errors have had a prejudicial effect, an assignment of
error claiming cumulative errors has no substance. Id.; State v. Sapp, 105 Ohio St.3d 104,
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2004-Ohio-7008, ¶ 103.
{¶ 53} Because we have found that no errors occurred during the trial, we find that
Harner was not deprived of a fair trial, and the cumulative error doctrine is inapplicable.
Harner's fifth assignment of error is, therefore, overruled.
{¶ 54} In conclusion, we find no merit to Harner's first, second, third and fifth
assignments of error. Harner's fourth assignment of error is sustained, his sentence for
having weapons under a disability is vacated and the case is remanded to the trial court to
impose one of the prison terms set forth in R.C. 2929.14(A)(3)(b). In all other respects,
Harner's conviction and sentences are affirmed.
{¶ 55} Judgment affirmed in part and reversed in part, and remanded for further
proceedings.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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