State v. Hoffman, 012221 OHCA5, 2019 CA 38

Docket Nº2019 CA 38
Opinion JudgeWise, J.
Party NameSTATE OF OHIO Plaintiff-Appellee v. THOMAS HOFFMAN Defendant-Appellant
AttorneyFor Plaintiff-Appellee R. KYLE WITT PROSECUTING ATTORNEY MARK A. BALAZIK ASSISTANT PROSECUTOR For Defendant-Appellant JAMES A. ANZELMO ANZELMO LAW
Judge PanelJUDGES: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. Wise, J. Hoffman, P. J., and Delaney, J., concur.
Case DateJanuary 22, 2021
CourtCourt of Appeals of Ohio

2021-Ohio-155

STATE OF OHIO Plaintiff-Appellee

v.

THOMAS HOFFMAN Defendant-Appellant

No. 2019 CA 38

Court of Appeals of Ohio, Fifth District, Fairfield

January 22, 2021

Criminal Appeal from the Court of Common Pleas, Case No. 18 DR 373

JUDGMENT: Affirmed.

For Plaintiff-Appellee R. KYLE WITT PROSECUTING ATTORNEY MARK A. BALAZIK ASSISTANT PROSECUTOR

For Defendant-Appellant JAMES A. ANZELMO ANZELMO LAW

JUDGES: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

Wise, J.

{¶1} Appellant Thomas Hoffman appeals the judgment and sentence entered by the Fairfield County Court of Common Pleas convicting him of two counts of Burglary in violation of R.C. 2911.12. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 7, 2018, Appellant was indicted by the Fairfield County Grand Jury on one count of Burglary, a felony of the second degree, in violation of R. C. 2911.12(A)(1), and one count of Theft Against a Person in a Protected Class, a felony of the third degree, in violation of R.C. 2913.02(B)(3).

{¶3} On August 39, 2018, the State filed a superseding indictment that, in addition to the original counts, added one count of Burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(1), and an additional two counts of Burglary, a felony of the third degree, in violation of R.C. 2911.12(A)(3).

{¶4} Appellant entered a plea of not guilty, and a jury trial commenced on November 27, 2018.

{¶5} At trial, Anell Haque testified her purse, her daughter's wallet, and her daughter's registered nurse id card were stolen out of her kitchen on May 13, 2018. She further testified that she knew Appellant as he had done yard work for her in the past.

{¶6} Next, Ruby Myers testified. Myers identified Appellant as having come to her home looking for work on May 13, 2018, and asking if his friend could use her bathroom. After Appellant had left, Myers stated that she noticed her purse was missing from her closet. Her purse had contained her car keys, her wallet, her checkbook, and her insurance cards. She then called the police and made a report.

{¶7} John Nelson then testified he saw a man talking with Myers enter her home, then exit carrying a white purse. He threw the purse into the yard, jumped off the porch, picked up the purse and got into the driver side of the truck.

{¶8} Robby Hill, Appellant's cousin, testified Appellant walked around Haque's house and then entered. Next, he came running out of the house with a purse that had an RN badge attached to it. After going through the purse, Appellant threw it in the trash can at a gas station. Hill next testified that Appellant approached Myers's house and spoke with Myers. Then Hill used Myers's restroom in the basement. When Hill returned to the truck, a white purse was in the cab, which was not there before.

{¶9} Appellee called Detective Sinewe to testify. Sinewe testified during his investigation that he spoke with Appellant, identified his truck, and discovered video evidence of Appellant's truck leaving Myers's residence.

{¶10} The State of Ohio rested its case in chief against Appellant.

{¶11} Appellant then took the stand to testify he did not enter Myers's house, he did not take a purse from her house, and that he did not see Hill take a purse from her house. He further testified he did not go to Haque's residence on May 13, 2018.

{¶12} Under cross-examination, Appellant admitted he had previously been convicted of theft. The State also played a recording where Appellant identified himself as saying, "if [Hill] testifies against me, I'm done." T. 139.

{¶13} The jury found Appellant guilty of two counts of burglary.

{¶14} During the sentencing hearing, the trial court found the two burglary counts do not merge, as they are not allied offenses of similar import. The trial court ordered Hoffman to serve concurrent prison terms for each offense.

ASSIGNMENTS OF ERROR

{¶15} On August 18, 2020, Appellant filed a notice of appeal. He herein raises the following four assignment of error.

{¶16} "I. HOFFMAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

{¶17} "II. HOFFMAN'S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶18} "III. HOFFMAN'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶19} "IV. THE TRIAL COURT ERRED BY FAILING TO MERGE HOFFMAN'S BURGLARY OFFENSES."

I.

{¶20} Appellant argues his trial counsel was ineffective by failing to request that the jury be instructed that the nature of Hoffman's prior arrest not be considered, failing to object to the admissibility of Hoffman's prior theft offenses, and by failing to request an instruction that the prior theft offenses can be considered only for purposes of impeachment. We disagree.

{¶21} Our standard of review is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel's assistance was ineffective; whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the trial would have been different. Id.

{¶22} Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court and the Ohio Supreme Court have held a reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697, 104 S.Ct. 2052. Even...

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