State v. Helfrich
| Decision Date | 08 May 2019 |
| Docket Number | Case No. 18-CA-45 |
| Citation | 2019 Ohio 1785 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JAMES C. HELFRICH Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.
For Plaintiff-Appellee
TRICIA MOORE
40 West Main Street, 4th Floor
Newark, OH 43055
For Defendant-Appellant
JAMES C. HELFRICH PRO SE
P.O. Box 921
Pataskala, OH 43062
{¶1} Appellant James S. Helfrich ["Helfrich"] appeals his conviction and sentence after a jury trial in the Licking County Municipal Court.
{¶2} Brandon Kaiser, Jovid Kimple and Douglas Smith rented property from Helfrich in October 1, 2017. The parties signed a lease and rental agreement. The property was described as a house with a detached garage. The tenants were given access to the lower level of the detached garage for their use. The written lease stated that pets were not permitted without the written consent of Helfrich.
{¶3} Kaiser's sister, Brittany Johnson, came to stay with him through the holidays and brought her dog "Kaiser" to the residence. Mr. Kaiser obtained a second dog "Frank" around this time. It was initially intended that Brittany would take Frank with her when she returned to her residence; however, she did not and Mr. Kaiser kept Frank.
{¶4} In December of 2017, Brandon brought the dogs inside the residence to eat due to it being cold. Helfrich came to the residence, observed the dogs in the home, and became angry. Brandon explained that they were his sister's dogs and they were there because of her visiting. Brandon testified that Helfrich advised him that the dogs were to remain in the garage when they were on the property.
{¶5} On December 27, 2017, at around 5:19 PM Kaiser filmed Helfrich as he drove onto the property. The video then shows Helfrich come around the garage, look inside the side door of the garage. At this point, the two dogs run out of the garage, away from the camera, and run off to the left. The dogs are never seen again on the video. Helfrich walks away to the right back to where his truck is parked. A few moments later, you see his pick-up truck drive off the property. Mr. Kaiser went outside and called for the dogs. Kaiser returned to him and Frank did not return. Kaiser called the City of Pataskala Police Department. After calling the police, Brandon posted on various websites in search of his dog including Nextdoor, Facebook, Paw Scouts, and Pet FBI.
{¶6} Officer Anthony Wisniewski of the Pataskala Police Department testified that he dispatched to the residence of Brandon Kaiser on December 27, 2017. He observed and recorded at the scene fresh boot prints walking around the back of the garage with dog prints walking parallel with those tracks. At the tire marks where the truck was parked, both the boot prints and the dog prints disappeared. After conducting his investigation at Brandon's residence, Officer Wisniewski went to Helfrich's home. There he observed a truck parked at the residence. He observed that there were no paw prints around the truck. Officer Wisniewski testified that he spoke with Helfrich who initially denied being near the garage.
{¶7} James Kasten testified that he works in New Albany and was leaving work at approximately 5:30 PM on December 27, 2017. A few minutes later, he approached the intersection at Smithmill and he noticed a small animal run out from the left. He observed the dog attempting to run up to vehicles driving in the intersection. Kasten stopped and opened the door to his vehicle and yelled for the dog, who without hesitation, jumped right into his vehicle. Kasten observed the dog did not have a collar or tag. He pulled off the road, found a vet close by, and made the phone call at 5:40 PM. Kasten left the dog with the staff at Willow Tree Vet Hospital. When Kasten returned home, he posted an ad on Craigslist and Pet FBI. This ad was observed by Officer Wisniewski, the investigating officer who informed Kaiser. The next day, Brandon went to Willow Tree Vet Hospital and found Frank. The veterinary hospital was more than ten miles away from his residence. Brandon testified that while the dogs were at the residence he was in charge of their care. At no point did he give the defendant permission to take the dog.
{¶8} Once the dog was found, based on the time he was located in New Albany and the time the dog was last observed at the residence, Officer Wisniewski decided to drive from the property to the intersection where the dog was located. He observed that it took him approximately 14 minutes. He also observed that the terrain was farmland with fences, ravines, and interstate with fences down both sides.
{¶9} On January 5, 2018, a summons was issued by U.S. Certified Mail to Helfrich charging him with one count of theft under R.C. 2913.02, a misdemeanor of the first degree and one count of criminal trespass under R.0 2911.21(A)(2), a misdemeanor of the fourth degree. Helfrich signed for the summons on January 9, 2018.
{¶10} Helfrich was arraigned and entered a not guilty plea on January 19, 2018. A hearing was held in the trial court on February 20, 2018 during which Helfrich informed the court that he intended to proceed pro se.
{¶11} The trial proceeded on May 16 and concluded on May 17, 2018.Helfrich represented himself and testified at trial. The jury found Helfrich guilty of theft and not guilty of criminal trespass.
{¶12} On May 25, 2018, the Court sentenced Helfrich for the charge of theft. The court sentenced him to serve One Hundred Eighty days with One Hundred Twenty days suspended, fined him $250, imposed a protective order, and placed him on probation for a period of one year. However, in a subsequent judgment entry on June 12, 2018, the court said it was 180 days in jail and 160 days suspended. Helfrich filed a motion to stay execution of his sentence and asked for clarification of the sentence. On June 12, 2018, the Court granted Helfrich's motion to stay and denied his motion to clarify as moot.
{¶13} Helfrich raises fourteen assignments of error,
{¶14} "I. APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.
{¶15} "II. THE COURT ERRED IN ALLOWING THIRD PARTIES TO TESTIFY ABOUT THE OWNERSHIP OF THE DOG IN QUESTION AND THE STATE DID NOT SHOW A LACK OF PERMISSION TO HAVE CONTROL OF THE DOG.
{¶16} "III. THE STATE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO REMAIN SILENT WHEN IT ALLOWED THE PROSECUTOR TO POINT OUT THAT APPELLANT REFUSED TO ANSWER QUESTIONS.
{¶17} "IV. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CROSS-EXAMINE THE APPELLANT USING THE APPELLATE COURT OPINION FROM THE CASE WHERE HE WAS NAMED A VEXATIOUS LITIGATOR.
{¶18} "V. APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED AS IT WAS FOUND OUT THAT THE JURORS COULD NOT SEE THE VIDEOS BEING PLAYED DURING THE TRIAL.
{¶19} "VI. THE TRIAL COURT ERRED IN NOT REMOVING JURORS WHO REPEATEDLY FELL ASLEEP AND DISRUPTED THE TRIAL PROCEEDINGS.
{¶20} "VII. THE TRIAL COURT ERRED IN NOT RECUSING HIMSELF AND/OR REPLACING A PREJUDICED STAFF MEMBER.
{¶21} "VIII. THE TRIAL COURT ERRED IN CENSORING AND EDITING THE RAW VERDICT FORMS, WHICH PREVENTED APPELLANT FROM INVESTIGATING ERRORS MADE BY THE COURT AND ITS STAFF.
{¶22} "IX. THE TRIAL COURT ALLOWED PLAIN ERRORS OR DEFECTS WHICH SUBSTANTIALLY AFFECTED THE RIGHTS OF THE APPELLANT.
{¶23} "X. THE TRIAL COURT ERRED BY ALLOWING THE STATE TO PRESENT VIDEOS AND PICTURES TO THE JURY DURING DELIBERATION THAT WERE NOT AUTHENTICATED OR ADMITTED INTO EVIDENCE.
{¶24} "XI. THE CUMULUTIVE [sic.] EFFECT OF ALL OF THE ERRORS AT TRIAL DEPRIVED JIM HELFRICH OF A FAIR TRIAL AND HAS CRIPLED [sic.] HIM WITH A CRIME OF DISHONESTY FOR THE REST OF HIS LIFE.
{¶25} "XII. THE GUILTY VERDICT OF THEFT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶26} "XIII. THE SENTENCE OF APPELLANT WAS UNREASONABLY HARSH FOR A FIRST TIME OFFENDER.
{¶27}
Pro se Litigants
{¶28} We understand that Helfrich has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶29} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in his brief that are outside of the record.
{¶30} In the interests of justice, we shall attempt to consider Helfrich's assignments of error.
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