State v. Dickess

• Citation: 884 N.E.2d 92,174 Ohio App.3d 658,2008 Ohio 39
• Decision Date: 03 January 2008
• Docket Number: No. 06CA3128.,06CA3128.
• Parties: The STATE of Ohio, Appellee, v. DICKESS, Appellant.
• Court: United States Court of Appeals (Ohio)

884 N.E.2d 92

174 Ohio App.3d 658

2008-Ohio-39

The STATE of Ohio, Appellee, v. DICKESS, Appellant.

No. 06CA3128.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided January 3, 2008.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant Prosecuting Attorney, for appellee.

Jessica A. Little, West Union, for appellant.¹

PER CURIAM.

{¶ 1} Christopher L. Dickess appeals the trial court's judgment convicting him of aggravated burglary, aggravated robbery, theft, and a firearm specification. On appeal, he contends that the trial court erred by overruling his motion to suppress the victim's pretrial voice identification because the law-enforcement officer presented the victim with only one male voice to hear, a method that was unnecessarily suggestive and resulted in a substantial likelihood of misidentification. Because the victim expressed complete certainty about his voice identification of Dickess, and because even if the procedure was unnecessarily suggestive, we find no substantial likelihood of misidentification, we disagree. Dickess next contends that the trial court committed plain error by instructing the jury that it could consider his prior conviction for impeachment purposes when he did not testify at trial. Because Dickess invited the error, and because the trial court, pursuant to Evid.R. 609(A)(2) and Evid.R. 806, properly allowed the state to introduce evidence regarding Dickess's prior conviction at trial, we disagree.

{¶ 2} Dickess next contends that the trial court committed plain error by instructing the jury that in order to convict him of theft, it had to find that the value of the property involved was $5,000 or more, when the indictment did not specify that the property involved was $5,000 or more. Because the indictment explicitly alleged a fourth-degree felony theft offense, which by definition involves property of $5,000 or more, we disagree. Dickess next contends that the state failed to present sufficient evidence to support the firearm specification because the state did not present any evidence that the gun allegedly used in the crime was real or operable. Because, after viewing the evidence in a light most favorable to the state, we find that any rational trier of fact could have found the firearm specification proven beyond a reasonable doubt, we disagree. For the same reason, he also contends that his conviction on the firearm specification is against the manifest weight of the evidence. Because substantial evidence supports his conviction of the firearm specification, we disagree. Finally, Dickess contends that his trial counsel was ineffective for (1) failing to object to the trial court's jury instructions regarding his prior conviction and the theft offense, (2) failing to object to testimony of his prior conviction, and (3) failing to object to testimony of his involvement in another recent robbery. Because we find that counsel's performance was neither deficient nor prejudicial, we disagree. Accordingly, we overrule all of Dickess's assignments of error and affirm the judgment of the trial court.

I

{¶ 3} On the morning of April 25, 2006, two individuals entered the home of Michael Wright, his wife, and his son, Lucas. At the time, neither Michael nor his wife was home. Lucas was home alone, sleeping in his bed, and awoke to a loud thud. He then saw a man, who was wearing a mask, in his bedroom. The man was pointing a gun at his face. The man directed Lucas not to look at him and not to move. He then ordered Lucas to stand up, put his hands behind his head, and face the window. The man told Lucas to lie down and stated that if Lucas resisted, he would kill him. The man asked Lucas whether there were any drugs, weapons, or money in the house and bound Lucas's hands behind his back. He told Lucas that if he lied, he would kill him. The man later led Lucas downstairs and told him to lie down. Lucas heard two individuals talking and ransacking the home. He heard footsteps coming toward him and saw someone lean over him. The next awareness he had, his head hurt and he thought the man had shot him. He eventually learned that one of the individuals had hit him with a liquor bottle. The man then bound Lucas's feet and tied his arms even tighter. He dragged Lucas down the hallway and told Lucas that if he moved, they would kill him.

{¶ 4} The house went silent for a period of time, and Lucas eventually yelled, "Hello," but did not hear a response. He managed to struggle to his feet and to reach his father's truck. A neighbor then spotted him and helped him to his nearby aunt's house, where they summoned help.

{¶ 5} At the hospital, doctors discovered that Lucas had suffered multiple skull fractures and swelling of the brain due to a concussion. While there, Lucas met with the investigating officer, Scioto County Sheriff's Detective Denver Triggs. Lucas told the detective that a couple of days earlier, someone named "Chris" had stopped by the house, looking for Lucas's father. Detective Triggs then discovered Dickess's name and began investigating further.

{¶ 6} A few days later, Detective Triggs met with Lucas and played a surreptitious audio recording of a male voice and asked Lucas whether he could identify the voice. With certainty, Lucas identified the voice as Dickess's.

{¶ 7} The Scioto County Grand Jury subsequently returned an indictment charging Dickess with (1) aggravated burglary, in violation of R.C. 2911.11(A)(1), (2) aggravated robbery, in violation of R.C. 2911.01(A)(1), (3) felonious assault, in violation of R.C. 2903.11(A)(1) and (A)(2), and (4) theft, in violation of R.C. 2913.02(A)(1) and (A)(4). The indictment also contained a firearm specification.

{¶ 8} Dickess pleaded not guilty and later filed a motion to suppress the victim's pretrial identification. However, the record does not indicate that the trial court held a hearing on the motion, and there is no transcript of such a hearing. There is no other entry or document relating to the motion.

{¶ 9} At trial, Lucas testified that he obeyed the intruder's instructions because the intruder "had a gun [and Lucas] wasn't going to test that." Lucas explained that Detective Triggs played a voice recording for him to see whether he could identify the voice. Lucas told the detective, "without a doubt, it's the same voice" that he heard during the home invasion. In explaining his certainty, Lucas stated: "It's a very distinct voice, but the way he pronounces some of his vowel sounds, like when he asked if I thought he was stupid, the way he said stupid I mean it's unmistakable and again listening to the recording that he had, the vowel sounds matched up without any doubt, that was the same voice." He identified the voice as Dickess's voice, and he stated that he did not have any doubt that Dickess was the man in his home on the morning of April 25. Lucas further explained that when he first listened to the tape, he recognized the voice within a minute. He stated that the "tone" and "uniqueness of his voice [were] right, but [he] listened a little bit longer just to make sure the syllables and the vowels were there." Lucas testified that he saw no need to listen to any other voice samples, because he was "100% sure" that the voice belonged to Dickess. He stated that he was certain about his voice identification, because the man had a gun pointed at him and he listened "very clear[ly.]"

{¶ 10} Angel Griffith testified that Dickess is her cousin. She explained that her husband, Bob, had mentioned while in the presence of Frankie Stephenson, Dickess's sister, that there was a reward for the stolen items. Frankie later called and asked for the Wrights' phone number. Angel then called the Wrights and advised them that Frankie wanted to set up a meeting. Angel stated that Michael Wright and Frankie met at her house. She testified that Michael showed Frankie a list of the stolen items. Frankie looked at the list and stated that several of the DVDs were at her sister's house and that she would try to get the DVDs and put them in a Ziploc bag so they could be fingerprinted. She also apologized for what had happened. When Angel saw Frankie about a week after this meeting, Frankie stated that her sister's home had been broken into and that the items were stolen.

{¶ 11} Michael Wright testified that Dickess had worked for him. He stated that the home intruders stole (1) a nickel-plated .38-caliber revolver, valued at approximately $850, (2) his wife's "one of a kind necklace that was made from a ring" that her grandmother had left her, valued at $4,500, (3) $150 in cash, and (4) several video games and DVDs, valued at around $1,500. Michael testified that he tried to recover those items from Frankie, Dickess's sister. He explained that Frankie called him and stated that she wanted to talk to him and asked him to bring a list of the stolen items. Michael offered to buy back anything on the list. Frankie stated that she thought "they had some of that stuff and that she would get back to [Michael]." However, Frankie never contacted him again.

{¶ 12} When the state called Frankie to the stand, she denied claims that she offered to help recover the Wrights' stolen property.

{¶ 13} Detective Triggs testified that when Lucas told him that a man by the name of "Chris" had stopped by the house a few days before the invasion, he then discovered that it was Dickess. Detective Triggs stated that he ran a computerized criminal history and found that Dickess had a history of aggravated robbery and burglary. After Dickess was arrested, Detective Triggs conducted two interviews with Dickess. He recorded both interviews, which were played for the jury but not transcribed. During these interviews, Dickess does not confess to being involved in the home invasion at the Wrights' home. However, he expresses knowledge of intimate details of the crime, supposedly gained through one of his...